Jose v. The Managing Director, Kerala State Road Transport Corporation Ltd., Trivandrum and Poulose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943 MACA NO. 2412 OF 2010** **AGAINST THE AWARD DATED 30.04.2010 IN O.P.(MV)NO.268/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANTS/PETITIONERS IN OP(MV)** **JOSE, AGED 19 YEARS, S/O.ANTHONY, ELANJIKKAL HOUSE, PULINKARA DESOM, KUTTICHIRA VILLAGE P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS 1 AND 2 IN OP(MV)** **1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION LTD., TRIVANDRUM.** **2 POULOSE, S/O.K.K.MATHEW, KAITHARATH HOUSE, KANJIRAPPILLY P.O., KOTTAYAM DISTRICT.** **BY ADVS.SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC SMT.BIMALA BABY, SC, KSRTC SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC SRI.P.C.CHACKO(PARATHANAM)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2412/2010 -:2:- Dated this the 20[th] day of July,2021 J U D G M E N T The appellant was the petitioner in O.P (MV) No.268/2007 on the file of the Motor Accidents Claims Tribunal,Irinjalakuda. The respondents in the appeal were the respondents 1 and 2 before the Tribunal. The parties are for the sake of convenience, referred to as per their status before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are : on 01.01.2007, while the petitioner was riding pillion on motorcycle bearing registration No.KL-7/AB-3292 through the Ollur-Thrissur road, a KSRTC bus bearing registration No.KL-15/5658(offending vehicle) driven by the second respondent hit the motorcycle. The petitioner sustained serious injuries and was treated at the District Hospital, Thrissur as an inpatient for a period M.A.C.A.No.2412/2010 -:3:- of 12 days. The petitioner was a workshop helper and earning a monthly income of Rs.6,000/-. The accident occurred solely due to the negligence of the second respondent, who drew the offending vehicle in a rash and negligent manner. The first respondent was the owner of the bus and, therefore, was vicariously liable the compensation amount to the appellant. The appellant claimed a total amount of Rs.6,02,000/- from the respondents, which was limited to Rs.3,00,000/-. 3. Respondent Nos.1 and 2 filed a joint written statement, inter alia, contending that the accident occurred solely on account of the negligence of the rider of the motorcycle, who drew the vehicle in a rash and negligent manner and that the amount of compensation claimed in the petition was exorbitant and excessive. 4. The petitioner and the legal representatives of the deceased, rider of the motorcycle filed O.P. (MV)No.269/2007 before the same Tribunal seeking M.A.C.A.No.2412/2010 -:4:- compensation on account of the death of the rider. 5. The Tribunal consolidated and jointly tried the original petitions. The petitioner produced and marked Exts.A1 to A8 in evidence. 6. The Tribunal by its common award allowed claim petition filed by the petitioner permitting him to realise an amount of Rs.89,500/- from the respondents. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Pursuant to the order of this Court on 24.01.2020, the petitioner was referred to the Disability Assessment Board of the Government Medical College Hospital, Mulamkunnathkavu, Thrissur. 9. The Medical Board by certificate dated 19.02.2020 has certified that the petitioner has a disability of 45%. The said certificate is accepted on record and marked as Ext.X1. M.A.C.A.No.2412/2010 -:5:- ## **Notional income:** 10. The petitioner had claimed that he was helper in a workshop and getting a monthly income of Rs.6,000/-. Nevertheless, the Tribunal fixed the notional income of the petitioner at Rs.2,500/- per month. 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 12. Following the ratio in the afore-cited decision and considering the fact that the accident occurred in the year 2007, I am of the opinion that the petitioner's notional income can safely be fixed at Rs.6,000/- as claimed in the claim petition. ## **Loss due to disability:** 13. In view of the assessment of the disability of M.A.C.A.No.2412/2010 -:6:- the petitioner at 45% by the Medical Board in Ext.X1 and considering his income at Rs.6,000/- per month and the relevant multiplier being '11', I hold that the petitioner is entitled for a compensation under the head 'loss due to disability' at Rs.4,21,200/-. ## **Loss of earnings:** 14. The petitioner had sustained fractures to his right femur and fracture of his proximal right humerus and he was hospitalised for a period of 12 days. He has also sustained disability of 45%. In the said circumstances, I fix his period of incapacity at four months. 15. In view of the re-fixation of the notional income of the petitioner at Rs.6,000/- per month and the period of incapacity at four months, I re-fix his 'loss of earnings' at Rs.24,000/- 16. With respect to the other heads of compensation namely; transport, bystander expenses, medical expenses, pain and sufferings and loss of M.A.C.A.No.2412/2010 -:7:- amenities, I find that the Tribunal has awarded reasonable and just compensation. 17. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decision, I am of the definite opinion 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>bythis Court| |---|---|---|---| |1|Loss of earnings|10,000|24,000| |2|Medical expense|42,300|42,300| |3|Bystander<br>expenses|1,200|1,200| |4|Transport<br>expenses|1,000|1,000| |5|Pain and sufferings|20,000|20,000| |6|Loss of amenities|15,000|15,000| |7|Loss due to<br>disability|Nil|4,21,200| ||**TOTAL**|**89,500/-**|**5,24,700/-**| 18. Even though the appellant had claimed only M.A.C.A.No.2412/2010 -:8:- an amount of Rs.3,00,000/- in the claim petition, in the light of the law laid down by the Hon'ble Supreme Court in **Nagappa v. Gurudayal Singh** [2003(1) KLT 115 (SC)] that there is no restriction in the courts awarding more compensation than what is claimed in the claim petition since just compensation is to be awarded; I have no hesitation to award the appellant an amount of Rs.5,24,200/- as compensation i.e., the enhancement of Rs.4,35,200/-. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.4,35,200/with interest at the rate of 6% per annum from the date of petition till the date of deposit and proportionate costs. The first respondent shall deposit the enhanced compensation with interest and proportionate costs within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the petitioner in accordance with law. M.A.C.A.No.2412/2010 -:9:- All pending interlocutory applications will stand closed. Sd/- **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge