Litty Pious v. Kerala State Road Transport Corporation

MACA.No.904 OF 2004 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942** ## **MACA.No.904 OF 2004** **AGAINST THE AWARD IN OPMV 814/1998 DATED 31-08-2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** |**APPELLANTS**<br>**:**|**APPELLANTS**<br>**:**|| |---|---|---| |**1**||**LITTY PIOUS, W/O.PIOUS VARGHESE,**| |||**MANGALY HOUSE, VATHAKKATTU,**| |||**THURAVOOR, ANGAMALY. (DIED)**| |**ADDL**. **2**||**PIOUS VARGHESE,**| |||**AGED 40 YEARS,**| |||**MANGALY HOUSE,**| |||**VATHAKKAD, THURAVOOR.**| |**ADDL. 3**||**MIDHUN, S/O.PIOUS VARGHESE,**| |||**AGED 12 YEARS**| |||**S/O.PIOUS VARGHESE,**| |||**MANGALY HOUSE,**| |||**VATHAKKAD, THURAVOOR**| |**ADDL 4**||**SUBIN,**| |||**AGED 14 YEARS**| |||**S/O PIOUS VARGHESE,**| |||**MANGALY HOUSE,**| |||**VATHAKKAD, THURAVOOR**| |**ADDL 5**||**ANN PIOUS**| |||**AGED 4½ YEARS**| |||**D/O PIOUS VARGHESE,**| |||**MANGALAY HOUSE,**| |||**VATHAKKAD, THURAVOOR**| |||**(LEGAL HEIRS OF DECEASED ORIGINAL APPELLANT**| MACA.No.904 OF 2004 2 **IMPLEADED AS ADDL APPELLANTS 2 TO 5 AS PER ORDER DATED 02.03.2020 IN IA-5/2004 IN MACA-904/2004)** **BY ADVS. SRI.JOSE THETTAYIL SRI.V.V.NANDAGOPAL NAMBIAR SMT.RESHMI JACOB** ## **RESPONDENTS:** **1 THE KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM-695 023.** **2 ANTU, S/O. DEVASSY, NEELAMGAVIL HOUSE, THOLOOR VILLAGE, PARAPPUR KARAYIL, TRICHUR DISTRICT.** **R1 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. R1 BY ADV. SRI.JAMES KOSHY.N. SC. KSRTC R1 BY SRI.JOY GEORGE, SC, K.S.R.T.C. R1 BY ADV. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.904 OF 2004 3 ## **JUDGMENT** ## **Dated this the 20th day of January 2021** The deceased 1[st] appellant was the petitioner in O.P(MV) No.814/1998 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents in the claim petition. During the pendency of the appeal, the 1[st] appellant died. Consequently, the additional appellants 2 to 5, the legal representatives of the deceased 1[st] appellant, were impleaded as per order dated 2.3.2020 in I.A No.5/2004. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioner had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident that occurred on 19.9.1997. 3. The case of the petitioner in brief in the claim petition was that, on 19.9.1997, while she was travelling in a Car bearing Reg. No.KBF-6812 through Angamaly-Kalady M.C.Road, a bus bearing Registration No.KL-15-2283 owned by the 1[st] respondent MACA.No.904 OF 2004 4 and driven by the 2[nd] respondent, in a rash and negligent manner at very high speed, hit the car. The petitioner sustained injuries and was hospitalised as in inpatient from 19.9.1997 to 29.9.1997 at the Medical Trust Hospital, Ernakulam. The petitioner claimed a total compensation of Rs.2,02,500/- under the various heads. 4. The 1[st] respondent contested the claim petition. They filed a written statement, inter alia, contending that the amounts claimed by the petitioner was excessive and exorbitant. Hence, they sought for the claim petition to be dismissed. 5. The claim petition was tried along with connected cases ie., O.P(MV) Nos.181, 182, 199, 813 and 814 of 1998. The petitioner was examined as PW1 and the other witnesses were examined as PW2 to PW6. Exts.A1 to A42 were marked through them in evidence. 6. The Tribunal, after considering the pleadings and materials on record by the impugned award allowed the claim petition, in part, by directing the 1[st] respondent to pay the petitioner an amount of Rs.79,200/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. MACA.No.904 OF 2004 5 8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 1[st] respondent. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 10. A constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. V. Pranay Sethi [(2017)16 SCC 680]** has held that Section 168 of the Motor Vehicles 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 standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. It is an undisputed fact that the petitioner was aged 34 years on the date of accident ie., on 19.9.1997. She was treated as an inpatient for a period of ten days as discernible from Ext.A5 and A6 documents. It is also on record that she had incurred medical expenses to the tune of Rs.14,294/- as per Ext.A8 series documents. 12. The Tribunal after seeing the petitioner, while she has MACA.No.904 OF 2004 6 been examined as PW1, assessed her disability as 10%. Taking into the consideration that the petitioner was treated as an inpatient, the Tribunal fixed the petitioner's loss of earning for a period of three months. The Tribunal also fixed the income of the petitioner, as claimed by her, at Rs.6,500/-. However, the Tribunal adopted the multiplier as 17, which is against the parameters laid down by the Hon'ble Supreme Court in **Pranay Sethi** (supra). 13. The correct multiplier as per the law laid down in **Pranay Sethi** (supra) is 16. Considering the fact that the petitioner is aged 34 years and the multiplier is 16, the petitioner is entitled for future prospects at 40%. 14. On an re-appreciation of pleadings and materials on record, and after hearing the learned counsel appearing for the respective parties, I am of the considered opinion going by the law laid down by the Hon'ble Supreme Court in **Pranay Sethi** (supra) **Pappu Deo Yadav Vs. Naresh Kumar and others (Civil Appeal No.2567 of 2020)** and **United India Insurance Co. Ltd. v. Satinder Kaur @ Satwindr Kaur and others [2020(3) KHC 760 (SC)],** the petitioner is entitled for the loss due to disability with future prospects at 40%. Accordingly, I MACA.No.904 OF 2004 7 enhance the compensation under the said head of claim from Rs.24,356/- to Rs.40,320/-, i.e., by a further amount of Rs.15,964/-. ## **Other heads of claim** 15. With respect to the other heads of claim, namely, loss of earning, transportation, damage to clothing, bystander expenses, medical expenses, pain and sufferings, I find that the Tribunal has awarded just and reasonable compensation. 16. Therefore, on an overall appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the considered opinion that the petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|4500|4500| |2|Transportation|800|800| |3|Damage to clothing etc.|300|300| |4|Bystander's expenses|18000|18000| MACA.No.904 OF 2004 8 |5|Medical expenses|16244|16244| |---|---|---|---| |6|Pain and sufferings|15000|15000| |7|Loss due to disability|24356|40320| |||79200|95164| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.15,964/- (Rupees fifteen thousand nine hundred and sixty four only) with interest at the rate of 9% p.a on the enhanced amount, from the date of petition till the date of realisation with proportionate cost. The 1[st] respondent shall deposit the additional compensation awarded in this appeal with interest and the proportionate costs by depositing the said amount before the Tribunal, within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the petitioner towards balance court fee and legal benefit fund. The Tribunal shall disburse the additional compensation to the petitioner, in accordance with law. **Sd/-** ab **C.S.DIAS JUDGE**