Lakshmikutty Amma v. Managing Director, KSRTC and Anr.

``` MACA NO. 2055 OF 2010 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 MACA NO. 2055 OF 2010 ``` ``` AGAINST THE AWARD DATED 7.5.2010 IN OP(MV)NO.1360/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER IN OP(MV):`** ``` LAKSHMIKUTTY AMMA AREEKKATHAZHATH HOUSE,PUTHURUTHIKUNNU DESOM,, KOMATTAMBATHUR VILLAGE,MANNARKKAD PO,, PALAKKAD DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS IN OP(MV):`** ``` 1MANAGING DIRECTOR, KSRTC AND ANOTHER TRANSPORT CORPORATION,M FORT, THIRUVANANTHAPURAM, 695 001. 2MURUGANSO.NARAYANAN PERINGOTTUKUZHI HOUSE,PARUTHIPULLY PO,, PALAKKAD DISTRICT,PIN 678 573. BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC SRI.BABU JOSEPH KURUVATHAZHASCKSRTC SMT.BIMALA BABY, SC, KSRTC SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC SC ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2055 OF 2010 ``` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 2055 of 2010 th Dated this the 12 day of October, 2023 ## JUDGMENT The appellant is the petitioner in OP(MV)No.1360/2006 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. 2. The claim petition was submitted by the appellant seeking compensation for the injuries sustained to her in a motor accident that occurred on 02.08.2006. According to her, the accident occurred while she was getting down from a KSRTC bus bearing registration No.KL-15/4515, driven by the second respondent, the bus was suddenly moved forward. As a result of the same, she fell down and sustained injuries. According to her, she was a manual labourer with a monthly income of Rs.4000/- and was aged 49 years at the time of the accident. The injuries sustained to her resulted in permanent disability, which was certified as 16% by a private doctor. The claim petition was submitted in such circumstances, seeking a ``` MACA NO. 2055 OF 2010 ``` 3 total compensation of Rs.3,20,000/- st 3. The 1 respondent filed a written statement disputing the negligence on the part of the driver of the bus. It was contended that the appellant fell down due to carelessness while trying to get down from the bus. They also disputed the quantum of compensation. 4. Heard Sri.P.V.Baby, the learned counsel appearing for the appellant and Adv.Sri.Alex Antony Sebastian, the learned counsel appearing for the respondent. 5. The evidence in this case consists of Ext.A1 to A10 from the side of the appellant, and no evidence was adduced from the side of the respondent herein. 6. After appreciating the materials placed on record, the tribunal came to the finding that the accident occurred due to the negligence on the part of the second respondent and being the employer, the first respondent was held liable to pay the compensation. The quantum of compensation was fixed as ``` MACA NO. 2055 OF 2010 ``` 4 Rs.77,650/- and the first respondent was directed to pay the said amount along with interest @ 7% from the date of petition till realization with proportionate costs. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 7. The main contention in this appeal is with regard to the quantum of compensation. It was pointed out that even though the monthly income of Rs.4000/- was claimed, the Tribunal took the same as only Rs.2000/- The learned counsel places reliance upon the decision rendered by the Hon’ble Supreme Court in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] and Syed Sadik V. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735] and also observations made in Minu Rout and another V. Satya Pradyumna Mahopatra and - Other [(2013) 10 SCC 695]. The learned counsel for the respondent opposes the said contention. ``` MACA NO. 2055 OF 2010 ``` 5 8. However, as rightly pointed out by the appellant, as per the principle laid down in the Ramachandrappa’s case (Supra), the Honourable Supreme Court fixed the monthly income of an ordinary worker as Rs 4500/-, even in the absence of any evidence, in respect of an accident occurred in the year 2004. In this case, as the accident occurred in the year 2006, Rs.5500/-could be fixed as a reasonable monthly income. The learned counsel for the respondent would point out that the monthly income claimed by the appellant was only Rs 4000/- and therefore, higher monthly income cannot be taken. However, the crucial aspect to be noted is that in Mini Rout’s case (supra), the Hon’ble Supreme Court fixed the monthly income of a driver as Rs.6000/-, even though the monthly income claimed therein was Rs.5000/-. In the said decision, it was observed that it is a matter the tribunal should have taken judicial notice. It is to be noted in this regard that the courts have a bounden duty to ensure just compensation to ``` MACA NO. 2055 OF 2010 ``` 6 the victim of a motor accident, and in such exercise, much emphasis need not be granted to the pleadings of the parties. In other words, while ensuring just compensation, the technicalities should not stand in the way, and instead, an objective assessment is required to be made, taking note of the ground realities that existed at the time of the accident. With respect to persons employed as coolies and other manual labourers, the monthly income that they receive may not be static, but it will vary from month to month, depending upon various factors such as availability of work, nature of work they were engaged in, seasonal character of the work etc. The educational backwardness of the said employees also often results in poor communication with the lawyers engaged by them while giving necessary instructions to prepare the claim petition, thereby, the outcome would be the claim of lesser monthly income in their respective pleadings. Hence, the courts/tribunals should take a pragmatic approach to determine ``` MACA NO. 2055 OF 2010 ``` 7 a deserving and adequate compensation, which could be termed as ‘just compensation’ to the victim, leaving aside the technical objections. Of course, a different approach could be taken with respect to persons with education or working with a definite salary. When such an approach is taken in this case, I find that the monthly income claimed was inadequate, as the circumstances that existed at the time of the accident clearly indicate the necessity of taking a higher monthly income. Therefore, I find some force in the contention put forward by the appellant in this regard, and accordingly, monthly income is fixed as Rs.5500/- 9. Another aspect highlighted by the learned counsel appearing for the appellant is that, even though the appellant sustained physical disability, which was certified as 16% by a private doctor and the certificate was produced as Ext.A9, the same was not accepted by the tribunal. In the award, it is seen that the said certification was not taken into ``` MACA NO. 2055 OF 2010 ``` 8 consideration. Presumably, the reason for not accepting the said certificate was that the doctor who issued the said certificate was not examined. 10. I have carefully gone through the contents of Ext.A9 certificate. It is seen that the same was issued by an Orthopedic surgeon, and a detailed discussion of the nature of injuries and the reason behind the assessment of physical disability are also seen. In Manikantan G v. K .Janardhanan Nair and others, (2021 (5) KHC 305), a single bench of this court, after referring to Rajkumar Vs Ajayakumar 2011 (1) SCC 343, held that, the Tribunal cannot scale down the percentage of disability mentioned in disability certificate and when the Tribunal is not satisfied with the said certificate, steps should be taken to refer the victim to the Medical Board. Therefore, the rejection of the disability certificate cannot be made merely because the doctor was not examined. In the facts of this case, after perusing the contents of Ext.A9, I am unable to find ``` MACA NO. 2055 OF 2010 ``` 9 any discrepancy so as to reject the percentage of disability certified in the said certificate and therefore, the physical disability in this case is taken as 16% as certified therein to compute the compensation for disability. As the appellant was aged 49 years at the time of the accident, the proper multiplier was 13. Thus, when the compensation for loss of earning capacity consequent to the physical disability is considered, the amount would come to Rs.1,37,280/- (5500 x 12 x 13 x 16/1000). 11. Consequent to the monthly income, the appellant would be entitled to a further sum of Rs.21,000/- under the head of loss of income. 12. As bystander expenses, even though the Tribunal calculated Rs.100/- per day, the amount was restricted to Rs.10,000/- as the claim was only to that effect. However, it is discernible from the materials that the appellant had undergone inpatient treatment for a period of 147 days. Therefore, the ``` MACA NO. 2055 OF 2010 ``` 10 compensation under this head ought to have been Rs.14,700/-. Thus, the appellant is entitled to a further sum of Rs.4,700/-. No amount is seen awarded towards extra nourishment. Considering the fact that the appellant availed inpatient treatment for a period of 147 days, I deem it appropriate to grant an amount of Rs.3000/- under this head. 13. The amount awarded under the head towards pain and suffering is Rs.25000/-. Considering the serious nature of the injuries, the long period of hospitalisation and the physical disability arising therefrom, I deem it appropriate to grant a further sum of Rs.10,000/- under the said head. Similarly, for the very same reasons, I deem it appropriate to grant a further sum of Rs.10,000/- under the head of loss of amenities as well. Thus, the total amount of compensation would come to Rs.1,85,980/- (1,37,280 + 21000 + 4700 + 3000 + 10000 + 10000). 14. In the light of the aforesaid observation and finding, ``` MACA NO. 2055 OF 2010 ``` 11 this appeal is allowed, the award dated 07.05.2010 in OP(MV)No.1360/2006 passed by the Motor Accidents Claims Tribunal, Irinjalakuda is hereby modified by granting an additional compensation of Rs.1,85,980/- (Rupees one lakh eighty-five thousand nine hundred and eighty only) and the first respondent is directed to deposit the said amount with interest @ 7% per annum, from the date of the petition, till realisation within a period of three months from the date of receipt of a copy of this judgment. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV