Lekha v. The Managing Director, Kerala State Road Transport Corporation (KSRTC)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** ## **MACA.No.48 OF 2020(E)** **AGAINST THE AWARD IN OP(MV)NO.472/2012 DATED 26-09-2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA** ## **APPELLANT/APPLICANT :** **LEKHA AGED 47 YEARS, D/O.VASANTHI, VAISHNAVAM, KANTALA, KANTALA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM- 695512.** **BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS** ## **RESPONDENT/1ST RESPONDENT :** **THE MANAGING DIRECTOR K.S.R.T.C, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM- 695023.** **R BY SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.48 of 2020(E) 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.472 of 2012 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 09.12.2011, while she was travelling in a KSRTC bus bearing registration No.KL15/4878, owned by the respondent Corporation. At the place of accident, the driver turned the bus and applied sudden break. The claimant fell down and she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,00,000/- under various heads. 2. Before the Tribunal, the driver of the bus remained absent and he was set ex parte. The respondent owner filed written statement denying negligence alleged against the driver of the bus. It was contended that the claimant sustained injuries due to her careless travelling. MACA No.48 of 2020(E) 3 The respondent disputed the age, occupation, monthly income, etc. stated in the claim petition and contended that the compensation claimed is exorbitant. 3. Before the Tribunal, Exts.A1 to A12 were marked on the side of the claimant. The respondents have not chosen to adduce any oral or documentary evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the bus by its driver. Since the said vehicle was not covered by a valid insurance policy, the respondent owner was held liable to pay the amount of compensation to the claimant. Under various heads, the Tribunal awarded a total compensation of Rs.1,36,000/-, together with interest at the rate of 8% per annum from the date of petition, i.e., 07.06.2012, till date of realisation, with proportionate cost, and the respondent owner was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before MACA No.48 of 2020(E) 4 this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the respondent Corporation. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 8. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but MACA No.48 of 2020(E) 5 the same should not be a pittance. 9. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||Head of Claim|Amount<br>claimed (in<br>Rs.)|Amount<br>awarded<br>(in Rs.)|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|90,000/-|--|| |2|Transportation<br>expenses|5,000/-|2,000/-|| MACA No.48 of 2020(E) 6 |3|Extra nourishment|5,000/-|1,500/-|| |---|---|---|---|---| |4|Damage to clothing|5,000/-|500/-|| |5|Medical expenses|1,00,000/-|1,000/-|| |6|Bystander's expenses|5,000/-|2,400/-|400 x 6| |7|Pain and sufferings|50,000/-|50,000/-|| |8|Loss of amenities and<br>enjoyment in life|75,000/-|19,500/-|| |9|Permanent disability|20,000/-|58,320/-|6,000 x 12 x<br>9 x 9/100| ||Total||Rs.1,35,220/-<br>Rounded off to<br>Rs.1,36,000/-|8% interest<br>per annum<br>from<br>07.06.2012<br>till realisation| 11. The accident occurred on 09.12.2011. At the time of accident, the appellant was aged 40 years. The appellant claimed a monthly income of Rs.30,000/- as Higher Grade Assistant in Life Insurance Corporation of India. In Ext.A10 salary certificate dated 21.06.2018, her gross salary for the month November, 2011 was Rs.39,337.45. [basic pay - Rs.23,770/-; Tech. Examination Allowance – Rs.180/-; Dearness Allowance – Rs.13,435.95; House Rent Allowance – Rs.1,676.50; and Transport Allowance – Rs.275/-] . 12. The document marked as Ext.A5 is the wound certificate and Exts.A6 and A7 are discharge summaries. Ext.A8 is the outpatient record. As evident from medical MACA No.48 of 2020(E) 7 records, in the accident, the appellant sustained fracture both bone (R) lower leg. She had undergone inpatient treatment for a period of 6 days. The document marked as Ext.A11 series is the medical bills. 13. Ext.A12 is the disability certificate issued by an individual doctor, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 9%. The Tribunal accepted the percentage of permanent disability assessed in Ext.A12 for the purpose of awarding compensation under various heads. 14. The learned counsel for the appellant would contend that, since the appellant suffered 9% permanent disability on account of the injuries sustained in the accident, she is entitled for assessment of disability compensation adding future prospects to her monthly income. 15. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on MACA No.48 of 2020(E) 8 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a monthly notional income of Rs.6,000/-, in MACA No.48 of 2020(E) 9 the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company** MACA No.48 of 2020(E) 10 **Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable MACA No.48 of 2020(E) 11 compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 16. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi** **v. National Insurance Company Limited [(2012) 6 SCC 421]** . A reading of the said decision would show that the injured before the Apex Court were having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity, and it was in such circumstances that the Apex Court granted them disability compensation by adding future prospects. 17. Considering the nature of injuries sustained and 9% permanent disability arising therefrom, the appellant MACA No.48 of 2020(E) 12 can not be treated as an injured having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity. Therefore, the appellant is not entitled for grant of compensation under the head permanent disability, adding future prospects to her notional monthly income. 18. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of **16** for 31 MACA No.48 of 2020(E) 13 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. 19. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 20. In the instant case, at the time of accident, the appellant was aged 40 years, who was working as Higher Grade Assistant in LIC, with a gross salary of Rs.39,337.45 [basic pay - Rs.23,770/-; Tech. Examination Allowance – Rs.180/-; Dearness Allowance – Rs.13,435.95; House Rent Allowance – Rs.1,676.50; and Transport Allowance – Rs.275/-] as evidenced by Ext.A10 salary certificate. The permanent disability of 9%, on account of the injuries MACA No.48 of 2020(E) 14 sustained in the accident, will have no bearing on her earning capacity till her retirement from service on attaining the age of superannuation. However the said disability will certainly have an adverse impact on her earning power, after retirement from service. Therefore, the appellant is entitled for grant of compensation under the head permanent disability, taking Rs.19,668/- (i.e. 50% of her basic pay of Rs.39,337.45) as her notional monthly income after her retirement from service on superannuation; and applying the multiplier of **9** applicable to the age group of 56 - 60 years. 21. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.58,320/- (6,000 x 12 x 9 x 9/100). Since the monthly income of the appellant after her retirement is fixed notionally as Rs.19,668/-, applying the multiplier of 9 applicable to the age group of 56 - 60 years and the percentage of permanent disability as 9%, the compensation under the head permanent disability is re-fixed as Rs.1,91,172/- (19,668 x 12 x 9 x 9/100), resulting an additional compensation of **Rs.1,32,852/-** MACA No.48 of 2020(E) 15 (1,91,172 – 58,320). 22. Towards loss of earning the appellant claimed a sum of Rs.90,000/-. As per Ext.A9 leave certificate, the appellant was on medical leave for the period from 09.12.2011 to 17.03.2012. Monetary loss, if any, caused to the appellant on account of the medical leave availed for the said period is not disclosed in Ext.A9 leave certificate. No documents were placed before the Tribunal to prove the loss of earning of the appellant for the said period. In such circumstances, the appellant is not entitled for payment of any compensation under this head. 23. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. The accident is of the year 2011. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 6 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is refixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000). MACA No.48 of 2020(E) 16 24. Towards bystander expenses, the Tribunal awarded a sum of Rs.2,400/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500/-. The accident is of the year 2011 and the appellant had undergone inpatient treatment for 6 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 25. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2011, the compensation under this head is re-fixed as Rs.1,250/-, resulting an additional compensation of **Rs.750/-** (1,250 - 500). 26. Towards medical expenses, the appellant claimed a sum of 1,00,000/-. Ext.A11 series of bills are only duplicate bills. In the absence of original bills, the Tribunal rightly declined the claim made by the appellant towards medical expenses and awarded only a sum of Rs.1,000/- MACA No.48 of 2020(E) 17 under that head. 27. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. As evident from medical records, in the accident, the appellant sustained fracture both bone (R) lower leg. She had undergone inpatient treatment for a period of 6 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is scaled down to Rs.15,000/-, which would represent just and reasonable compensation, resulting an **excess payment** of **Rs.35,000/-** (50,000 – 15,000), which has to be deducted from the additional compensation granted in this appeal. 28. Towards loss of amenities, the Tribunal awarded a sum of Rs.19,500/-. Considering the nature of injuries sustained by the appellant and 9% permanent disability on account of those injuries, the compensation awarded by the Tribunal under the head pain and suffering is scaled down to Rs.10,000/-, which would represent just and reasonable MACA No.48 of 2020(E) 18 compensation, resulting an **excess payment** of **Rs.9,500/-** (19,500 – 10,000), which has to be deducted from the additional compensation granted in this appeal.. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.90,102/-** (Rupees ninety thousand one hundred and two only) [(1,32,852 + 1,000 + 750) – (35,000 + 9,500)] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 319 days in filing this appeal, which was condoned by the order dated 25.02.2020, subject to the condition that in case enhanced compensation is granted in this appeal, the appellants shall not be entitled for interest on the said amount, for the period of delay. The respondent Corporation shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The MACA No.48 of 2020(E) 19 disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide her Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the respondent owner, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV