Joseph v. Suresh Kumar P.E.(Deleted), KSRTC (Deleted) and The Manager, New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943** **MACA NO. 1285 OF 2012** **AGAINST THE AWARD DATED 03.04.2012 IN OP(MV)NO.826/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA, KOTTAYAM** ## **APPELLANT/ PETITIONER:** **JOSEPH, S/O.CHACKO, MANJADIYIL HOUSE, THATTAKUZHA KARA, UDUMBANNOOR VILLAGE, AT PRESENT RESIDING AT THAYYIL HOUSE, THEKKUMURI KARA, PULIYANNOOR VILLAGE.** **BY ADV SRI.SHIJU VARGHEESE** ## **RESPONDENTS/RESPONDENTS:** - **1 SURESH KUMAR P.E.(DELETED), S/O.PRABHAKARAN PILLAI, SURESH SADHANAM, PERUMAN PO., PANAYAM KARA, PANAYAM VILLAGE, KOLLAM DISTRICT - 691 601** - **2 MANAGING DIRECTOR(DELETED), KSRTC, THIRUVANANTHAPURAM-695001.** - **3 THE MANAGER, NEW INDIA ASSURANCE CO.LTD., THIRUVANANTHAPURAM - 695 501.** **RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 23/03/2021 IN I.A 1/2021 IN MACA 1285/2012.** **R3 BY ADV. SRI. PMM. NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1285/2012 -:2:- _Dated this the 22[nd] day of October,2021_ ## **J U D G M E N T** The appellant was the petitioner in O.P(MV) No.826/2009 on the file of the Motor Accidents Claims Tribunal,Pala. The respondents in the appeal were the respondents before the Tribunal. At the instance of the appellant, the respondents 1 and 2 in the appeal have been deleted from the party array as per order dated 23.03.2021 in I.A.No.1/2021. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner 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 14.12.2008. It was his case that, on the above said date, while he was walking on the Palakuzha-Thodupuzha public road, a KSRTC bus bearing registration No.KL-15/6812 driven by the first respondent in a rash and negligent manner, M.A.C.A.No.1285/2012 -:3:- hit the petitioner. The petitioner was thrown off to the road and he sustained serious injuries, including an open fracture Type III on his left leg and deformity of the left leg by 6x3 cms. The petitioner was treated as an inpatient at the Devamatha Hospital, Koothattukulam and, thereafter, at the Medical College Hospital, Kottayam from 14.12.2008 to 15.02.2009 i.e., for a period of 83 days. Thereafter, he was treated in two spells for a period of 23 days at the Medical College Hospital. The petitioner was aged 34 years at the time of the accident and was a granite stone (metal crusher) worker. He was earning a monthly income of Rs.6,000/-. The bus was owned by the second respondent and insured with the third respondent. Hence, the petitioner claimed a compensation of Rs.5,27,000/- from the respondents, which was limited to Rs.5,00,000/- 3. The respondents 1 and 3 did not contest the proceedings. M.A.C.A.No.1285/2012 -:4:- 4. The third respondent had filed a written statement, refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the petitioner. 5. The petitioner was examined as PW1 and Exts.A1 to A8 were marked through him in evidence. Ext.X1 disability certificate was also marked as court a exhibit. The first respondent got himself examined as RW1. 6. The Tribunal, after analysing the pleadings and materials on record, after fixing the permanent disability of the petitioner at 25%, awarded the petitioner a compensation of Rs.2,31,360/- 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.3,000/-. The third respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation, the petitioner is in appeal. M.A.C.A.No.1285/2012 -:5:- 8. Heard; Sri. Shiju Varghese, the learned counsel appearing for the appellant/petitioner and Sri. PMM. Najeeb Khan, the learned counsel appearing for the original third respondent/insurer. 9. The question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? **Negligence and liability:** 10. Ext.A5 final report filed by the Koothattukulam police in Crime No.519/2008 substantiates that the accident occurred due to negligence of the first respondent. Even though the first respondent had adduced oral evidence, he has failed to discredit Ext.A5 final report. Admittedly, the second respondent was the owner and the third respondent was the insurer of the bus. The third respondent has admitted that the bus had a valid insurance coverage and has not proved that the second respondent had violated the policy conditions. M.A.C.A.No.1285/2012 -:6:- Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income of the petitioner:** 11. The petitioner claimed that he was 34 years at the time of the accident and was a metal crusher worker and earning a monthly income of Rs.6,000/-. Nevertheless, the Tribunal fixed the notional monthly income of the petitioner at Rs.4,000/-, for want of material. 12. 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. 13. Following the yardstick in the afore-cited decision and taking into account the fact that the accident occurred in the year 2008, I hold that the petitioner's notional income can safely be fixed at M.A.C.A.No.1285/2012 -:7:- Rs.6,000/- per month, as claimed in the claim petition. ## **Disability of the petitioner:** 14. The petitioner was examined by a three member Medical Board attached to Government Medical College Hospital, Kottayam. The Medical Board – as per Ext.X1 – has certified the permanent disability of the petitioner at 25% due to the non-union of the two bones of his left leg. 15. In _**Rajkumar v. Ajayakumar**_ [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that what needs to be assessed by the Tribunal in the case of injury is the functional/occupational disability of the injured/claimant. 16. In the instant case, the Tribunal has blindly accepted the assessment made in Ext.X1 and fixed the permanent disability of the petitioner at 25% for the purpose of calculating the compensation for 'loss due to disability'. M.A.C.A.No.1285/2012 -:8:- 17. When the appeal was taken up for consideration on 13.10.2021, this Court directed the petitioner to be personally present before this Court, in order to satisfy judicial conscience of this Court and see the present state of the petitioner. 18. Pursuant to the above direction, the petitioner was present before this Court on 21.10.2021. 19. I have personally interacted with the petitioner, who seemed to be in a unstable and depressed state of mind. I have seen his left leg, which is totally lifeless. The petitioner stated that he is an orphan as his parents are no more and his siblings have deserted him. He has no property or assets. He is presently under the care of a destitute home named 'Divyaraksha Social and Charitable Society', Mylacombu P.O., Thodupuzha, Idukki, Pin:685584. The petitioner was produced before this Court by the Manager of the said institution, Sri. Tomy Mathew M.A.C.A.No.1285/2012 -:9:- Odackal. The Manager stated that in addition to the lifeless state of the left leg of the petitioner, he also has other medical complications, including fecal incontinence that is a lack of control over defecation, due to an injury to his rectum. The petitioner was brought to Court by a wheelchair and he walked into the Court with the help of a walker. The petitioner stated that he is being looked after well by the institution. On my interaction with the petitioner, I am convinced that the petitioner will not be in a position to carry on with his avocation as metal crusher worker, but may be in a position to do some sitting job. 20. Taking into consideration Ext.X1 certificate and after interacting with the petitioner, and seeing his present state, especially his lifeless leg, I hold that the petitioner has functional disability of 50%. Hence, I fix the functional disability of the petitioner at 50%. ## **Multiplier** 21. As the petitioner was aged 34 years at the M.A.C.A.No.1285/2012 -:10:- time of accident, the relevant multiplier to be adopted in '16', as per the law laid down in _**Sarla Varma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)]. ## **Loss due to disability:** 22. Taking into consideration the afore-mentioned factors, namely; the age of the petitioner at 34, his monthly income at Rs.6,000/-, his functional disability at 50%, and the multiplier at '16', I award the petitioner an amount of Rs.5,76,000/- as compensation for 'loss due to disability', instead of Rs.2,04,000/- awarded by the Tribunal. ## **Loss of earnings”** 23. It is on record that the petitioner was treated as an inpatient for a period of 105 days in three spells. Even though the petitioner had claimed 'loss of earnings' for a period of nine months i.e., from 14.12.2008 to 02.09.2009, the Tribunal found that the petitioner was only indisposed for a period of three M.A.C.A.No.1285/2012 -:11:- months, which is erroneous and wrong, especially for the reason that Exts.A6 and A7 discharge summaries prove that the petitioner was finally discharged only on 17.07.2010. 24. Therefore, I hold that the petitioner was indisposed for a period of nine months as claimed in the claim petition. In view of the re-fixation of the notional income of the petitioner at Rs.6,000/-, I hold that the petitioner is entitled for compensation for 'loss of earnings' at Rs.54,000/-, instead of Rs.12,000/awarded by the Tribunal. ## **Bystander expenses:** 25. The petitioner was admittedly treated as an inpatient for a period of 105 days in three spells in Medical College Hospital, Kottayam. As the accident occurred in the year 2008, I fix Rs.300/- per day as 'bystander expenses'. Therefore, I hold that the petitioner is entitled to an amount of Rs.31,500/(Rs.300 x 105 days) towards 'bystander expenses'. M.A.C.A.No.1285/2012 -:12:- ## **Extra nourishment:** 26. The petitioner was treated as an inpatient for a period of 105 days. Although he claimed an amount of Rs.10,000/- towards 'extra nourishment', the Tribunal awarded only a meagre amount of Rs.500/-, which is on the lower side. Hence, I re-fix the compensation for 'extra nourishment' at Rs.10,000/- as claimed in the claim petition. ## **Compensation for pain and sufferings and loss of amenities:** 27. It is substantiated that the petitioner treated as an incurred serious injuries and was inpatient for a period of 105 days, he was indisposed for a period of nine months and had suffered a functional disability of 50%. In such circumstances, I hold that the petitioner is entitled for compensation for 'pain and sufferings' at Rs.25,000/-, instead of Rs.7,500/- awarded by the Tribunal and Rs.25,000/- as compensation for 'loss of amenities', instead of M.A.C.A.No.1285/2012 -:13:- Rs.5,000/- awarded by the Tribunal. 28. With respect to the other heads of compensation namely; 'transportation', 'bystander expenses' and 'medical expenses', I find that the Tribunal has awarded reasonable and just compensation. 29. On a overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, 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<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|12,000|54,000| |2|Transportation|1,000|1,000| |3|Damage<br>to<br>Clothing|500|500| M.A.C.A.No.1285/2012 -:14:- |4|Bystander<br>expenses|750|31,500| |---|---|---|---| |5|Extra nourishment|500|10,000| |6|Medical expenses|110|110| |7|Pain and sufferings|7,500|25,000| |8|Loss of amenities|5,000|25,000| |9|Loss<br>due<br>to<br>disability|2,04,000|5,76,000| ||**Total**|**2,31,360**|**7,23,110**| 30. Even though the petitioner had claimed only an amount of Rs.5,00,000/- as compensation, taking into consideration the fact that the petitioner has sustained a functional disability of 50% and what needs to be awarded is reasonable and just compensation, I award him more compensation than what is claimed in the claim petition. This above course is permissible in view of the law laid down by the Hon'ble Supreme Court in _**Rajesh v. Rajbir Singh**_ [2013 (3) KLT 89 SC] and _**Nagappa v. Gurudayal Singh**_ [2003 (1) KLT 115 SC]. In the result, the appeal is allowed by enhancing M.A.C.A.No.1285/2012 -:15:- the compensation by a further amount of **Rs.4,91,750/-** with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.10,000/-. The third respondent/insurer is directed to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall only disburse an amount of Rs.2,00,000/(Rupees two lakh only) to the petitioner, by crediting the amount in his bank account and balance amount shall be put in Fixed Deposit with standing instructions to the Bank to credit quarterly interest earned on the fixed deposit to the Savings Bank Account of the petitioner. Taking into consideration the peculiar facts and circumstances of the case because the petitioner is in a depressed state, I direct the Kerala Legal Services Authority(KeLSA) to depute a para legal volunteer of the competent District Legal Services M.A.C.A.No.1285/2012 -:16:- Authority to visit the petitioner every six months and ascertain his welfare. If the para legal volunteer finds that the petitioner needs further amounts for his treatment, the same shall be duly reported to the Tribunal. The Tribunal shall, based on the said report, direct the Bank to credit to the petitioner's bank account such further amount as may be required. The Registry is directed to forthwith transmit back the LCR with a copy of this judgment to the Tribunal, and also to KeLSA for necessary follow up action. Sd/- ## **C.S.DIAS,JUDGE** DST/22.10.21 //True copy/ P.A.To Judge