MACA No. 1888 of 2013 (Soman (deceased) and others v. The Managing Director, KSRTC Transport Bhavan, Thiruvananthapuram)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943** **MACA NO. 1888 OF 2013** **AGAINST THE AWARD DATED 17.11.2011 IN OPMV 1619/2004** **OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL APPELLANT/APPLICANT:** - **1 SOMAN,(DIED) S/O.BHARGAVAN, PURAVILAKATHU VEEDU, PERUMALA MANJA, NEDUMANGADU** - ***ADDL. APPELLANTS IMPLEADED** - **2 ADDL. KUNJUMOL A., W/O. SOMAN, AGED 60 YEARS** **PURAVILAKATHU VEEDU, PERUMALA MANJA, NEDUMANGADU P.O., THIRUVANANTHAPURAM- 695 541.** - **3 ADDL. SHEJIN K.SOMAN, AGED 28, S/O. SOMAN, PURAVILAKATHU VEEDU, PERUMALA MANJA, NEDUMANGADU P.O., THRIUVANANTHAPURAM- 695 541** **4 ADDL. NEENA K.SOMAN, AGED 26, D/O. SOMAN, PURAVILAKATHU VEEDU, PERUMALA MANJA, NDUMANGADU P.O., THIRUVANANTHAPURAM - 695 541.** - **LEGAL HEIRS OF DECEASED ORIGINAL APPELLANTS ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 4, AS PER ORDER DATED 3/2/2022 IN IA 1/22 IN MACA 1888/2013.** **BY ADVS. R.T.PRADEEP SRI. ROBINSON** ## **RESPONDENT/RESPONDENT:** **THE MANAGING DIRECTOR K.S.R.T.C TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM, PIN:695 081** **BY ADV ALEX ANTONY SEBASTIAN P.A-KSRTC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1888 of 2013 **2** ## **M.R.ANITHA, J. ----------------------------------------M.A.C.A No. 1888 of 2013 ----------------------------------------** Dated this the 23[rd] day of February, 2022 ## **JUDGMENT** The appeal has been filed against the award in O.P.M.V No.1619/2004 on the file of Motor Accidents Claims Tribunal, Attingal. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the claimant in a motor vehicle accident occurred on 18.08.2004 at 1.30 pm. It is alleged that he was a pedestrian using the road at eastern gate of Nedumangad Market-Mancha public road, and the state carriage bearing registration No.KL-15/5329 driven by the driver, who was an employee of the respondent-KSRTC, hit against him, resulting in serious injuries to his left leg. Total compensation of Rs.7,00,000/- has been claimed. 2. Before the Tribunal, the respondent filed written statement denying the incident as alleged by the claimant. The claims under various heads are also contended to be excessive and exorbitant. The claimant was put to strict proof regarding the age, income and occupation of the claimant. It is also contended that the M.A.C.A No. 1888 of 2013 **3** accident occurred while the claimant was traveling as a passenger on the footboard of stage carriage bus bearing registration No. KL15/5329 owned by the respondent-KSRTC and he leapt out of the moving vehicle and fell down on road thereby sustained injuries. According to the leaned Standing Counsel, the claimant himself was responsible for the accident. There was no rashness and negligence on the part of the driver of the bus. 3. There was no oral evidence from either side. Exts. A1 to A25 were marked from the side of the claimant. The Tribunal after evaluation of the pleadings and materials found that the negligence was on the part of the driver of the bus and liability also fixed on the respondent and awarded a total compensation of Rs.3,02,500/-, together with interest at the rate of 9% per annum. 4. Aggrieved by the quantum of compensation awarded by the Tribunal, the claimant came up before this Court in appeal for the various grounds stated in the memorandum of appeal. During the pendency of the appeal, the appellant died and I.A.No.1/2022 was filed to implead the legal heirs of the appellant. Additional appellants 2 to 4 were impleaded. Lower court records were called for and perused. Heard the learned counsel for the additional M.A.C.A No. 1888 of 2013 **4** appellants and the learned Standing Counsel for the respondentKSRTC. 5. According to the learned counsel for the appellant, the compensation awarded by the Tribunal under various heads are very low. It is also contended that the monthly income claimed as Rs.6,000/- by the claimant ought to have been accepted since there are supporting documents produced from his side to prove that he was an Electrician. It was also contended that permanent disability certified by the Medical Board is 50% and taking into account that the occupation of the claimant as an Electrician, the permanent disability ought to have been taken as 80%. To support that contention, the learned counsel relies on **Sankarappa Kubbanna Kattimani v. Karnataka State Road Transport Corporation and Others** [2007 ACJ 2279] **.** 6. To substantiate the fact that the income claimed by the claimant as Rs.6,000/- ought to have been accepted, the learned counsel relies on **Sivakumar.M v. Managing Director, Bengaluru Metropolitan Transport Corporation** [(2017) 5 SCC 79]. 7. The learned counsel for the respondent on the other hand contended that they totally disputed the award passed by the M.A.C.A No. 1888 of 2013 **5** Tribunal. According to him, the incident occurred due to the negligence of the claimant in traveling, standing on the footboard of the bus. He also contended that delay has been caused in lodging the FIS. The accident occurred on 18.08.2004 but the FIR has been lodged only on 24.08.2004. The charge sheet is marked as Ext.A3, the date on which is shown as 13.10.2004. According to the learned counsel, this charge might have been with respect to some other accident. Since the driver has not been made a party, all the factors could not be brought out. He would also contend that reasonable compensation have already been awarded by the Tribunal and no enhancement is required at the instance of this court. 8. First aspect is with regard to the monthly income of the claimant. In this context the learned counsel relies upon Ext.A21 work experience certificate issued by the employer P.Sasidharan. Work experience certificate dated 26.03.1982 certified that claimant has been working with him as Electrician from 1[st] April, 1976 onwards. Ext.A25 is the copy of the Malaysia visa and its date of issue is 11.11.1999. Ext.A24 the copy of the passport. Documents produced from the side of the claimant would substantiate his allegation that he had been to Malaysia also. All the documents were M.A.C.A No. 1888 of 2013 **6** marked without objection. So his occupation can be accepted as Electrician. The incident occurred in the year 2004, the monthly income of Rs.6,000/- claimed by him is not seems to be excessive as he is claimed to be an electrician. In **Sivakumar.M v.(supra)** , the appellant is a painter. The accident occurred in the year 2013 and the claimant claimed monthly income of Rs.15,000/-. So the Apex Court was of the view that the Tribunal went wrong in taking income as Rs.5,500/-. In view of the nature of work and the accident was occurred in the year 2013, income was fixed as Rs.10,000/- per month instead of Rs.6,500/- fixed by the High court. 9. In the present case, in view of the avernments in the claim petition and the supporting documents produced from the side of the claimant, I am of the considered view that the income of the claimant can reasonably be fixed as Rs.6,000/- instead of Rs.3,000/fixed by the Tribunal. 10. Ext.sA8, A9, A10, A12, A13 and A17 are the medical records produced from the side of the claimant. Ext.A4 is the treatment certificate, Ext.A5 is the discharge certificate, Exts.A6 and A7 are referral out patient cards. Ext.A4 treatment certificate dated 22.09.2004 issued from Medical College Hospital, M.A.C.A No. 1888 of 2013 **7** Thiruvananthapuram would show that he had type III BB compound fracture in left leg middle 1/3rd. Ext.A5 is the discharge card issued from the Department of Orthopaedics, Medical College Hospital, Thiruvananthapuram in which there are detailed description of injuries, type 3 B compound fracture both bone left leg middle 1/3rd. Disability certificate issued by the Medical Board also certified 50% permanent disability. It is also stated that there is non union of both bones (L) leg with fixed equinus deformity. 50% permanent disability has been certified by the Medical Board. According to the learned counsel, in view of the prolonged treatment and the grievous nature of injuries to the extend of 50% permanent disability certified by the Medical Board, the compensation awarded under various heads by the Tribunal is very low. 11. The Tribunal awarded loss of earning for a period of 6 months. So that can be maintained by fixing the amount at Rs.6,000/- per month. Therefore, under the head of loss of earnings the claimant is entitled to get Rs.36,000/- (6,000 x 6). Amount already awarded is to be deducted that ie 36,000-18000, it will come to **Rs.18,000/-.** 12. The learned counsel claimed compensation for further M.A.C.A No. 1888 of 2013 **8** future treatment but no documents are produced. So this Court is not in a position to award any amount under the head of future treatment. Towards transportation expenses, the Tribunal already awarded Rs.1,500/-. Discharge summery produced form the side of the claimant would show that he had been to hospital on various occasions for the prolonged impatient treatment. Hence total amount of Rs.3,000/- can be awarded towards the transportation charges. Deducting the amount already awarded, the balance would be Rs. **1,500/-** (3,000-1500). 13. Towards the extra nourishment, the Tribunal awarded Rs.2,000/- that can be enhanced to Rs.3,500/- in total. Deducting the amount already awarded, the balance would be Rs.1,500/-. An amount of Rs.2,500/- is already awarded by the Tribunal towards the by stander expenses. It has come out that he had undergone impatient treatment for 284 days and the accident was in the year 2004. Hence the claimant is entitled to get Rs.200/- per day towards expense of bystander. Hence, under the head of by stander expenses, claimant is entitled to get Rs.56,800/- (200x284). Deducting the amount already awarded, the balance would be Rs **.54,300/-** (56,800-2,500). M.A.C.A No. 1888 of 2013 **9** 14. Under the head of pain and suffering, the amount awarded by the Tribunal seems to be very low in view of the nature of the injuries sustained and prolonged treatment undergone by him. So Rs.30,000/- can be granted towards pain and suffering. Deducting the amount already awarded, the balance would be **Rs.15,000/-** (30,000-15,000). 15. It has come out that during the pendency of appeal, the claimant died and his legal heirs has been impleaded. Even though it has been alleged in the supporting affidavit to the impleading petition that the death was in the year 2016 as a consequence of the injuries sustained, no record or documents were produced to prove the cause of death. 16. The next aspect is with respect to the future earning power. The disability certificate issued by the Medical Board certify 50% permanent disability. According to the learned counsel, in view of the occupation of the claimant as Electrician and injury sustained to his left leg at 50% permanent disability will result in at least 80% of functional disability as per dictum laid down in **Sankarappa Kubbanna Kattimani v.(supra).** In that case actually the High Court reduced the compensation to 1,07,000/- from 2,04,800/- M.A.C.A No. 1888 of 2013 **10** awarded by the Tribunal and reduced the disability at 50%. The claimant in that case was a coolie. The Apex court in view of the avocation of the claimant, the assessment of disability at 80% by the Tribunal was upheld and reduction of disability at 50% by the High Court was deprecated and the award passed by the Tribunal was maintained. 17. In **Raj kumar v. Ajay Kumar and Another** (2011 (1) SCC 343 = 2010 KHC 5021) the Apex Court has elaborately discussed the general principle relating to compensation in injury cases. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed in detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating to treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. M.A.C.A No. 1888 of 2013 **11** 18. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:- Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 19. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 20. In the present case, Ext.A16 disability certificate would certify 50% permanent disability, it has already been found that the claimant was proved to be an Electrician. Being an Electrician, he will have to stand almost on working hours, so loss of 50% disability to one leg would result almost total functional disability to do the work of an Electrician. He died in the year 2016 also. So in view of M.A.C.A No. 1888 of 2013 **12** **Sankarappa** v. (Supra), his permanent functional disability can be fixed as 75%. So compensation towards future loss of earnings power would be 6,000x12x13x75/100=7,02,000/-. From that the amount already awarded by the Tribunal is to be deducted. The balance would be Rs. **5,04,000/-** (7,02,000-1,98,000). So in total the claimants are entitled to get total enhanced compensation of **Rs.5,94,300/-** (Five lakhs ninety four thousand three hundred only) (18,000+1,500+1,500+54,300+15,000+5,04,000). 21. In the result, additional appellants 2 to 4 are allowed to realise enhanced compensation of **Rs.5,94,300/-** in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. The respondent is directed to pay the enhanced compensation granted in this appeal, together with interest deducting the amount due towards balance court fee, within a period of two months from the date of receipt of certified copy of this judgment. Enhanced compensation shall be apportioned among additional Appellants 2 to 4 in the ratio 50:25:25. 22. The appeal is filed with a petition to condone delay of 538 days. While condoning the delay by order dated 20.03.2020 in C.M.Appl.No.1/2013 (CMAP.No.2310/2013), it was made clear that, M.A.C.A No. 1888 of 2013 **13** in case of any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 538 days is excluded. The disbursement of enhanced compensation to additional appellants shall be made taking note of the law on the point and in terms of 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. Additional appellants 2 to 4 shall provide his 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, within one month from the date of receipt of certified copy of this judgment. **Sd/-** **M.R.ANITHA** **JUDGE** rps/