M.A.C.A No.916 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 MACA.No. 916 of 2008(E) ---------------------OPMV.282/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... ## APPELLANTS/SUPPLEMENTAL PETITIONERS 2 TO 7 -------------------------------------------------------- 1. KAYARUNEESA, WIDOW OF MOHAMMED KASIM. 2. SHEIK BEEVI, D/O.LATE MOHAMMED KASIM. 3. SALEEM, S/O.LATE MOHAMMED KASIM. 4. SHAMSUDEEN, S/O.LATE MOHAMMED KASIM. 5. HASEENA, D/O.LATE MOHAMMED KASIM. 6. SHAKEELA, D/O.LATE MOHAMMED KASIM. ALL ARE RESIDING AT NADUPATHY, NEAR MILK SOCIETY, ANAMARI POST, CHITTUR TALUK, PALAKKAD - 678 506. - BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS : RESPONDENTS -------------------------- 1. M.PEER MOHAMMED, S/O.MOHAMMED GHANI RAWTHER, RESIDING AT NAVAKKODE, KODUVAYUR, CHITTUR TALUK, PALAKKAD - 678 501. 2. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. *************************** **M.A.C.A No.916 of 2008 ******************************** Dated this the 22[nd] day of January 2010 ## **JUDGMENT** ## BASANT, J. Legal representatives of a deceased/injured/1[st] claimant are the appellants. The deceased/1[st] claimant was driving a bullock cart along the public road. The vehicle - a KSRTC bus, hit on the rear of the bullock cart. The deceased/1[st] claimant suffered multiple injuries. The 1[st] respondent is the driver and the 2[nd] respondent is the owner-the KSRTC, of the vehicle. 2. The 1[st] claimant suffered multiple injuries. There were subdural haematoma on right fronto temporoparietal region with midline shift to left. Haemorrhagic contusions were there on the left temporal, frontal and parietal region. There was posterior inter-hemispheric bleed. The deceased/1[st] claimant was in the hospital as an inpatient for 111 days in two different hospitals. He continued to live thereafter and died on 29.06.2003, the accident having taken place on 14.05.1998. The deceased was aged 55 years at the time of the accident. 3. The death of the 1[st] claimant took place during the pendency of the claim lodged by him. His legal heirs, the present **M.A.C.A No.916 of 2008** 2 appellants, came on record after his death. It appears that they have a case that the death was as a result of the accident and the injuries suffered, though the deceased had survived for a period of 5 years after the accident. 4. The Tribunal obviously found no evidence to link death with the accident and the injuries. The Tribunal hence considered the claim as one for compensation for injuries suffered and not death. The Tribunal proceeded to pass the impugned award directing payment of a total amount of Rs.1,63,250/- as compensation as per the details given below. |i)|Loss of earning||| |---|---|---|---| ||(11 months X Rs.1,500)|:|Rs. 16,500/-| |ii)|Transport to hospital|:|Rs. 2,000/-| |iii)|Extra nourishment||| ||(111 X 50)|:|Rs. 5,550/-| |iv)|Damage to articles|:|Rs. 500/-| |v)|Medical expenses|:|Rs. 7,000/-| |vi)|Bystander's expenses||| ||(111 days)|:|Rs. 12,450/-| |vii)|Pain and suffering|:|Rs. 25,000/-| |viii)|Reduction in earning||| ||capacity||| ||(1500 X 12 X 11 X 40/100):||Rs. 79,200/-| **M.A.C.A No.916 of 2008** 3 ix) Loss of amenities : Rs. 15,000/................. Total : Rs.1,63,200/.................. (rounded off to Rs.1,63,250/-) The said amount was directed to be paid along with interest @ 6% per annum from the date of the petition to the date of payment. 5. We have heard both the counsel. The learned counsel for the appellants assails the impugned award on various grounds. 6. First of all the learned counsel for the appellants submits that the Tribunal should have reckoned this as a case of death consequent to the injuries suffered in an accident. The accident had taken place on 14.05.1998 and death of the original 1[st] claimant occurred during the pendency of the proceedings on 29.06.2003. The burden, in these circumstances, was heavy on the appellants herein to establish satisfactorily that death was the direct result of the accident and the injuries. Postmortem certificate has not been produced. No data is placed before the Court to enable the Court to come to a firm, authentic and definite conclusion that death, which occurred 5 years later, was **M.A.C.A No.916 of 2008** 4 the direct result of the accident and the consequent injuries. On the evidence placed before the Tribunal, we find no merit in the contention that the Tribunal should have reckoned the case as one for compensation for death as a result of the accident. 7. The learned counsel for the appellants next contends that even if the claim is reckoned as a claim for compensation for the injuries suffered by the 1[st] claimant, which is being prosecuted after his death by the appellants herein, the amounts awarded are not fair, reasonable and just. The learned counsel first of all contends that the quantum of monthly income reckoned by the Tribunal at Rs.1,500/- per mensem is not justified. The accident had taken place on 14.05.1998. The injured was admittedly a bullock cart driver. No better evidence is placed before court about his possible monthly income. Even though a claim was raised that he would have been getting an amount of Rs.3,000/- per mensem, the Tribunal could not evidently swallow that assertion. We are, in these circumstances, reminded of the presumption of prudence available under the second schedule to the Motor Vehicles Act that even a non earning person can be assumed to earn an income of Rs.1,250/per mensem. This presumption was available even from 1994. **M.A.C.A No.916 of 2008** 5 In these circumstances, we take the view that the Tribunal has not committed any indiscretion in accepting and reckoning the monthly income of the deceased on 14.05.1998 as Rs.1,500/per mensem. At any rate, better materials to take a different view in appeal has not been made available. 8. The learned counsel for the appellants then contends that the nature of the disability suffered by the deceased has been assessed by a competent medical officer in Ext.A6 disability certificate to be 80%. Overwhelming evidence is available to show that the deceased was aged 55 years at the time of his death and could not continue to work thereafter. The disability certificate indicates that he was virtually bed ridden thereafter and he was unable to pursue his normal avocation. It is true that the author of Ext.A6 certificate has not been examined by the claimants. The Tribunal, in these circumstances, accepted the reduction in earning capacity only at 40%. 9. The learned counsel for the appellant contends that the Tribunal was not realistic in not accepting Ext.A6. At any rate, even if the details given in the disability certificate were not accepted by the Tribunal in toto about the extent of disability, considering the nature of employment of the deceased, the **M.A.C.A No.916 of 2008** 6 Tribunal should have reckoned a higher percentage of reduction in earning capacity. Reckoning of the reduction in earning capacity at 40% by the Tribunal, in any view of the matter, is incorrect and insufficient, contends the counsel. There is no dispute raised about the correctness of the multiplier adopted at 11. 10. Having considered all the relevant circumstances, taking into account the nature of the disability, nature of employment of the deceased/1[st] claimant and the possible reflection of the disability on his earning capacity, we are satisfied that the Tribunal should, at any rate, have reckoned 70% as the reduction in earning capacity. 11. The learned counsel for the appellant then contends that only a meagre amount of Rs.15,000/- has been awarded under the head of loss of amenities. At the age of 55, the deceased/1[st] claimant had suffered the injuries. The available indications eminently suggest that the deceased was thereafter leading a vegetable existence. The disability suffered by a person has two fold reflections on his life; it reduces the earning capacity; it also impairs the quality of enjoyment of life. For both reflections of the physical disability on his life, a victim is entitled **M.A.C.A No.916 of 2008** 7 to be compensated. We have indications to suggest that the deceased was leading a miserable life after he suffered the accident till death claimed at last in 2003. We are satisfied that a higher amount of compensation must, at any rate, have been awarded under the head of loss of amenities considering the nature of the disability suffered and endured by the 1[st] claimant till his death. 12. The learned counsel for the appellant further submits that no amount has been awarded under the head of future medical expenses and bystander's expenses. Even till his death, he had to be on medication and bystander's expenses were incurred. The Tribunal did not award any amount on these grounds. An amount of Rs.12,450/- has been awarded under the head of bystander's expenses. But that can only be held to be the bystander's expenses incurred for the 111 days during which period the deceased was an inpatient in two different hospitals. Even though the amount of Rs.12,450/- awarded as compensation for bystander's expenditure for 111 days does not yield to rational mathematical resolution, it appears that the Tribunal had awarded an amount of about Rs.112/- per day as expenses for the bystander. **M.A.C.A No.916 of 2008** 8 13. The above discussions lead us to the conclusion that the deceased/1[st] claimant was entitled to and the appellants as legal heirs of the deceased/1[st] claimant are entitled to the following further amounts by way of compensation in addition to the amounts already awarded by the Tribunal. i) Future medical expenses and bystander's expenses (no amount awarded) : Rs. 7,500/ii) Reduction in earning capacity (1500 X 12 X 11 X 70/100) (1,38,600 minus 79,200) : Rs.59,400/iii) Loss of amenities (35000 minus 15000) : Rs.20,000/................. Total Rs.86,900/.................. 14. The learned counsel for the appellant contends that the Tribunal had awarded interest at a perversely and painfully low and inadequate rate of 6% per annum. Relying on the decision in **Dharampal v. U.P.State R.T.C** [2008(2) KLT 691 (SC)], the counsel contends that interest could have been awarded at least at 7.5% per annum. We agree with the learned counsel for the appellant on that aspect. **M.A.C.A No.916 of 2008** 9 15. In the result: a) This M.A.C.Appeal is allowed in part; b) The appellants, as the legal heirs of the deceased/1[st] claimant, are entitled to a total further amount of Rs.86,900/- (Rupees Eighty six thousand and nine hundred only) in addition to the amounts already awarded by the Tribunal; c) The entire amount of compensation shall carry interest @ 7.5% per annum from the date of petition to the date of payment. 16. All other directions issued by the Tribunal are upheld. Revised directions regarding deposit/release shall be issued by the Tribunal. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** rtr/-