Joseph v. Prakasan and The Managing Director, KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 11[TH] DAY OF OCTOBER 2021 / 19TH ASWINA, 1943** **MACA NO.2208 OF 2012** **AGAINST THE AWARD DATED 28.6.2012 IN OP(MV)NO.328/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA, WAYANAD** ## **APPELLANT/PETITIONER:** **JOSEPH, S/O.MATHAI MADAPPALLIKUNNIL HOUSE, PILAKAVU POST, MANANTHAVADY TALUK, WAYANAD DISTRICT.** **BY ADV SRI.ABRAHAM MATHEW (VETTOOR)** ## **RESPONDENTS/RESPONDENTS:** **1 PRAKASAN, S/O.CHANDHU POROTH HOUSE, KANNAKARA POST, CHELANOOR, KOZHIKODE DISTRICT. (DRIVER OF THE KSRTC BUS NO.KL-15/6503 D.L.NO.NOT KNOWN) PIN:673 616.** **2 THE MANAGING DIRECTOR K.S.R.T.C. THIRUVANANTHAPURAM (OWNER OF THE K.S.R.T.C. BUS NO.KL-15 6503) PIN:695 001.** ## **ADV.SRI.P.C.CHACKO - R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 2208/2012 2 ## _**JUDGMENT**_ _Dated this the 11[th] day of October, 2021_ The appellant was the petitioner in O.P.(M.V.) No.328 of 2008 on the file of the Motor Accidents Claims Tribunal, Wayanad. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation on account of the injuries that he sustained in an accident on 14.2.2008. It was his case that, while he was travelling in a bus bearing registration No.KL-15/6503 from Kalpetta to Mananthavady, which was driven by the first respondent and owned by the second respondent, the bus hit an electric post. The accident occurred due to the negligence of the first respondent. The appellant sustained serious injuries including a fracture to the lower end of humerus with bone loss and fracture of the olecranon with choronoid process. He was treated as an inpatient for a period of 26 days. He sustained a permanent disability. The appellant was an agriculturist by profession and earning a monthly income of Rs.10,000/-. Hence the MACA 2208/2012 3 appellant claimed compensation of Rs.5,92,000/- from the respondents, which was limited to Rs.5,00,000/-. 3. The respondents 1 and 2 filed a joint written statement contending that the accident occurred due to the negligence of the appellant, who was travelling on the foot board of the bus. The compensation claimed was excessive. 4. The appellant produced and marked Exhibits A1 to A11 in evidence. Exhibits C1 and C1(a) disability certificates issued by the District Hospital, Mananthavady were also marked in evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellant to realise from the second respondent an amount of Rs.2,69,100/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/petitioner is in appeal. 7. Heard ; Sri.Abraham Mathew, the learned counsel appearing for the appellant/petitioner and MACA 2208/2012 4 Sri.P.C.Chacko, the learned counsel appearing for the second respondent/owner. 8. The point 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 A11 charge sheet filed by the police substantiates that the accident occurred due to the negligence of the first respondent. Undisputedly, the second respondent was the owner of the bus. Therefore, the second respondent is vicariously liable to pay the compensation amount. ## Income of the appellant 10. The appellant had claimed that he was an agriculturist by profession and earning a monthly income of Rs.10,000/-. Nevertheless, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 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 MACA 2208/2012 5 ## 2004 at Rs.4,500/- per month. 12. Following the yardstick in the aforecited decision and keeping in mind the fact that the accident occurred in the year 2008, I re-fix the notional income of the appellant at Rs.6,500/- per month. ## Loss of earnings 13. The Tribunal, after analysing the pleadings and materials on record, has held that the appellant was indisposed for a period of six months. Taking into consideration the injuries that the appellant had sustained based on Exhibit A4 wound certificate, Exhibits A5 and A7 discharge summaries and Exhibit C1 and C1(a) disability certificates, I find that the period of six months fixed by the Tribunal is reasonable and correct. 14. In view of the re-fixation of the notional income of the appellant at Rs.6,500/- per month, I re-fix his loss of earnings at Rs.39,000/-, instead of Rs.18,000/- awarded by the Tribunal. ## Loss due to disability 15. As per Exhibit C1 and C1(a) disability certificates issued by the Medical Board, functional disability of the MACA 2208/2012 6 appellant has been assessed at 25%, taking into account the fact that he had fracture of the lower end of his humerus with bone loss, fracture of the olecranon with choronoid process and crush injury on his left forearm and elbow. 16. In **Raj Kumar v. Ajay Kumar** [2011(1)KLT 620(SC)], the Honourable Supreme Court has held that in a claim for compensation on the basis of injury, what needs to be looked into is the functional disability of the injured claimant. 17. Considering the fact that the appellant was an agriculturist by profession and he had sustained injuries as noted in Exhibit C1(a) disability certificate, I hold that the assessment made by the Medical Board by fixing the functional disability of the appellant at 25% is correct and reasonable. Hence I confirm the assessment made by the Medical Board in Exhibit C1(a). 18. The appellant was aged 53 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 others** [(2010) 2 KLT 802 (SC)], the relevant multiplier to MACA 2208/2012 7 be adopted is '11'. 19. Taking into account the above mentioned factors, namely, the income of the appellant at Rs.6,500/-, his functional disability at 25% and the multiplier at 11, I refix the compensation for loss due to disability at Rs.2,14,500/instead of Rs.99,000/- awarded by the Tribunal. ## Bystander expenses 20. The appellant had claimed an amount of Rs.20,000/- towards bystander expenses. However, the Tribunal awarded only an amount of Rs.2,600/-, which according to him is on the lower side. 21. Taking into consideration the fact that the appellant was treated as an inpatient for a period of 26 days and that the accident occurred in the year 2008, I hold that he is entitled for bystander expenses at Rs.7,800/i.e., Rs.300/- per day for 26 days. ## Loss of amenities 22. The Tribunal awarded an amount of Rs.5,000/under the head loss of amenities. Taking into account the fact that the appellant has a functional disability of 25%, he was indisposed for a period of six months and he was MACA 2208/2012 8 treated as an inpatient for a period of 26 days, I hold that the appellant is entitled for enhancement of compensation under the said head by a further amount of Rs.20,000/-. 23. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 24. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount awarded by<br>the Tribunal (Rs.)|Amount modified<br>and recalculated by<br>this Court(Rs.)| |---|---|---| |Loss of earnings|Rs. 18,000/-|Rs. 39,000/-| |Transportation|Rs. 6,000/-|Rs. 6,000/-| |Clothing|Rs. 500/-|Rs. 500/-| |Bystander expenses|Rs. 2,600/-|Rs. 7,800/-| |Extra nourishment|Rs. 2,600/-|Rs. 2,600/-| |Medical expenses|Rs.1,10,400/-|Rs.1,10,400/-| |Pain and sufferings|Rs. 15,000/-|Rs. 15,000/-| |Loss of amenities|Rs. 5,000/-|Rs. 25,000/-| |Loss due to disability|Rs. 99,000/-|Rs.2,14,500/-| |Loss due to disfigurement|Rs. 5,000/-|Rs. 5,000/-| |Loss of earning power|Rs. 5,000/-|Rs. 5,000/-| |Total|Rs.2,69,100/-|Rs.4,30,800/-| MACA 2208/2012 9 In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.1,61,700/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.4,000/-. The second respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** csl