Kerala State Road Transport Corporation v. Madhusoodanan S/o Sreedharan and K. V. Sanal Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 MACA NO. 1678 OF 2015** **AGAINST THE ORDER/JUDGMENT OPMV 1122/2012 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, NEYYATTINKARA** ## **APPELLANT/RESPONDENT:** KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, THIRUVANANTHAPURAM REPRSENTED BY ITS MANAGING DIRECTOR, REPRESENTED BY THE AUTHORISED SIGNATORY, ZONAL OFFICER, SASIDHARAN BY ADVS. SRI.P.C.CHACKO(PARATHANAM) SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION SRI.ALEX ANTONY SEBASTIAN P.A. ## **RESPONDENTS/APPLICANTS/2ND RESPONDENT:** 1 MADHUSOODANAN S/O SREEDHARAN, AGED 64 YEARS, KKV NAGAR, PART B.VARADA HOUSE, KARAKULAM VILLAGE, THIRUVANANTHAPURAM DIST, NOW RESIDING AT BHARATHI NIVAS, KARINDADA, VLANGAMURI, NEYYATTINKARA TALUK, NEYYATTINKARA POLICE STATION LIMIT. 2 K.V. SANAL KUMAR S/O KARUNAKARAN NAIR, SANAL NIVAS, KANNANCODE, PERINGAMALA VILLAGE, NEDUMANGAD TALUK BY ADV SRI.R.NIKHIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2023, ALONG WITH CO.145/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1678 of 2015 & Co. 145 of 2015 : 2 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 CO NO. 145 OF 2015** **AGAINST THE ORDER/JUDGMENT MACA 1678/2015 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTOR/1ST RESPONDENT/CLAIMANT:** MADHUSOODANAN S/O SREEDHARAN, KKV NAGAR, PART B, VARADA HOUSE, KARAKULAM VILLAGE, THIRUVANANTHAPURAM DIST, NOW RESIDING AT BHARATHI NIVAS, KARINDADA, VLANGAMURI, NEYYATTINKARA TALUK, NEYYATTINKARA. BY ADV SRI.R.NIKHIL ## **RESPONDENTS/APPELLANTS/RESPONDENTS:** 1 THE MANAGING DIRECTOR K.S.R.T.C., CHIEF OFFICE, THIRUVANANTHAPURAM – 695 001. 2 K.V. SANAL KUMAR S/O KARUNAKARAN NAIR, SANAL NIVAS, KANNANCODE, PERINGAMALA VILLAGE, NEDUMANGAD TALUK – 695 542 BY ADVS. SRI.P.C.CHACKO(PARATHANAM) SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION SRI.ALEX ANTONY SEBASTIAN P.A. THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2023, ALONG WITH MACA.1678/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1678 of 2015 & Co. 145 of 2015 : 3 : **DEVAN RAMACHANDRAN, J. ========================= M.A.C.A.No. 1678 of 2015 & C.O.No.145 of 2015 ========================== Dated this the 13[th] day of March, 2023** ## **JUDGMENT** The Kerala State Road Transport Corporation (KSRTC) has filed this appeal, impugning the Award of the Motor Accidents Claims Tribunal, Neyyattinkara (the 'Tribunal' for short), in OP(MV)No.1122/2012, which has been filed by the 1[st] respondent herein, who was injured in a road accident on 22.10.2012, when the driver of the bus owned by the KSRTC in which he was travelling, applied brake in a rash and negligent manner, thus causing him to fall and to sustain grievous injuries. The appellant alleges that the notional income adopted by the learned Tribunal in favour of the claimant is excessive; and thus prays that same be reduced. 2. The claimant, on the other hand, has filed Cross Objection No.145/2015, asserting that the learned Tribunal ought to have adopted his notional income to be Rs.50,000/- per month as claimed and not Rs.30,000/-, as now reckoned. He added that the compensation now awarded to his client under the heads “Pain and Sufferings” and “Extra Nourishment” is also inadequate; and thus prayed that the sums awarded by the Tribunal be enhanced. 3. I have heard Sri.Alex Antony Sebastian – learned Standing M.A.C.A.No.1678 of 2015 & Co. 145 of 2015 : 4 : Counsel for the KSRTC and R.Nikhil – learned counsel for the cross objector. 4. I have evaluated the afore rival submissions on the touchstone of various materials and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 5. As is discernible from the above, the sole controversy between the parties in this case is as to the income reckonable in favour of the claimant/cross objector. 6. The claimant is a very Senior Advocate practicing in Neyyattinkara Bar, and this is uncontested. He claimed Rs.50,000/as being his monthly income and produced Ext.A15 – which is a certificate issued by the National Insurance Company, to show that he was their panel counsel from the year 2005. Obviously, he attempted to establish that his income was a minimum of Rs.50,000/-, if not more, based on the active practice in which he was engaged. However, the KSRTC now argues that the learned Tribunal ought not to have even adopted Rs.30,000/- as the notional income of the claimant, because there is no evidence to prove the same. 7. I notice that the learned Tribunal considered the afore rival positions and, taking note of the fact that the cross objector was a M.A.C.A.No.1678 of 2015 & Co. 145 of 2015 : 5 : Senior member of the Bar, having had active practice for over 30 years or more, and being a panel advocate for the National Insurance Company from the year 2005, it would be, even by a rough estimate, justified to take his notional income to be Rs.30,000/-, which is Rs.20,000/- less than what was claimed by him. 8. I must say that, I cannot find the afore conclusion of the learned Tribunal to be in any manner in error for more reasons than one. 9. For the first, the learned Tribunal has correctly assessed that the cross objector was a counsel with a long practice, and the income of Rs.30,000/- per month is the least a person of such stature would enjoy. This is more so because Ext.A15 – certificate issued by the National Insurance Company, would clearly indicate that he was their panel counsel from the year 2005; and thus, that his income would certainly be at least the figure which has been adopted by the learned Tribunal. 10. For the second, the medical evidence on record shows the aftermath of the accident on the cross objector, and the learned Tribunal has also found that Ext.A9 – Disability Certificate reckons the permanent disability of the cross objector to be 23%. In **Satheesh E. v. The New India Assurance Company Ltd. and others [(2022) SCC OnLine SC 1828],** the Hon'ble Supreme M.A.C.A.No.1678 of 2015 & Co. 145 of 2015 : 6 : Court, as recently as in the year 2022, took the view that even in the case of a person with 25% disability, future prospects ought to be granted, guided by **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]** . This view has found resonance in the various earlier judgments of the Hon'ble Supreme Court, including **Syed Sadiq v. United India Insurance Co. Ltd. [(2014) 2 SCC 735], Jagdish v. Mohan and others [2018 ACJ 1011],** and **Vijay Kumar Rastogi v. Uttar Pradesh State Roadways Transport Corporation [AIR 2018 SC 819]** to name a few. Therefore, even assuming that the notional income of the cross objector has to be reduced, 10% future prospects would be eligible to him, except for the fact that he was 66 years at the time of the accident. 11. Therefore, looking at the issue from any angle, the income reckoned by the Tribunal in favour of the cross objector, namely Rs.30,000/- per month, can never be found to be high or excessive. 12. That being said, for the same reasons I have recorded above, the claim of the cross objector, for reckoning an enhanced monthly income, is also untenable. 13. That being said, Ext.A6 – Wound Certificate and Ext.A8 – Treatment Certificate record that the cross objector suffered from _“compression fracture of 1[st] lumbar vertebra and lacerated wound over the scalp. In L4, L5 inter vertebral disc, there was deffuse_ M.A.C.A.No.1678 of 2015 & Co. 145 of 2015 : 7 : _annular bulge with minimal indentation of thecal sac”_ (sic). The treatment records establish that the injury suffered by the cross objector would cause him lifelong back pain and that his efficiency to function as an advocate would certainly be substantially reduced. I am, therefore, without doubt that the compensation under the head “Pain and Sufferings”, as awarded by the Tribunal; as also for “Extra Nourishment”, requires to be marginally enhanced. I propose it to be Rs.40,000/- and Rs.5,000/respectively. In the afore circumstances: - (a) MACA No.1678/2015 is dismissed. - (b) Cross Objection No.145/2015 is allowed in part, awarding an amount of Rs.40,000/- under the head “Pain and Sufferings”, instead of Rs.20,000/-, as awarded by the Tribunal; and Rs.5,000/- under the head “Extra Nourishment”, instead of Rs.1,000/-, as now awarded by the Tribunal. - (c) In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the claimant will be at full liberty to recover the compensation, as enhanced by this Court, from the KSRTC, along with interest at the rate of 9% as awarded by the Tribunal, from the date of the claim until it is recovered. He will also be M.A.C.A.No.1678 of 2015 & Co. 145 of 2015 **==> picture [21 x 7] intentionally omitted <==** entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the KSRTC before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/DEVAN RAMACHANDRAN JUDGE** anm