Managing Director, Kerala State Road Transport Corporation vs Abdul Majeed S/o Abdul, Mahamood T.A., National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937 MACA.No. 1032 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 395/2006 of MACT,KASARAGOD DATED 01-08-2011 APPELLANT(S)/2ND RESPONDENT: ------------------------------------- MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., TRIVANDRUM-23, REPRESENTED BY ITS CHIEF LAW OFFICER. BY ADV. SRI.P.K.BEHANAN, SC, KSRTC RESPONDENT(S)/PETITIONERS: -------------------------- 1. ABDUL MAJEED S/O.ABDULLA, SURABHI HOUSING COLONY, KAIRPALA ROAD, NULLIPPADY, KASARGOD VILLAGE, KASARGOD P.O., KASARGOD TALUK, PIN-671001. 2. MAHAMOOD T.A., S/O.LAB AHAMEMD HAJI, HOUSE NO.13/349 OF KMC PACHAKKAD, KASARGOD, PIN-671001. 3. NATIONAL INSURANCE CO. LTD., BANK ROAD, KANNUR, PIN-670001. R1 BY ADV. SRI.JAWAHAR JOSE R1 BY ADV. SMT.CISSY MATHEWS R3 BY SRI.M.A.GEORGE R3 BY ADV. SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2016, ALONG WITH MACA. 1778/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** **========================== M.A.C.A. Nos. 1032 & 1778 OF 2012 ==========================** Dated this the 10[th] day of March, 2016 ## **JUDGMENT** ## _**Ravikumar, J.**_ These appeals have arisen from the award dated 01.08.2011 in O.P.(MV)No.395/06 passed by the Motor Accidents Claims Tribunal, Kasaragod. M.A.C.A. No.1032/12 has been preferred by the second respondent in the claim petition and M.A.C.A. No.1778/12 has been preferred by the claimant. Essentially, the grievance in the former appeal is that the Tribunal erred in exonerating the 3[rd] respondent from the liabilities and that the 3[rd] respondent ought to have been saddled with personal liability to compensate the claimants. According to the appellant in the former appeal, the Tribunal erred in finding that the accident which led to the filing of the claim petition occurred solely **M.A.C.A.1032 & 1778/2012** 2 due to the rashness and negligence on the part of the driver of the KSRTC bus and in fact, according to the appellant, the rider of the motor cycle was also negligent and his rashness and negligence has also contributed to the accident. Yet other contention has been taken up therein to the effect that the interest awarded by the Tribunal is exorbitant and it is liable to be reduced to 6%. The injured/claimant preferred the latter appeal on being dissatisfied with the quantum of compensation awarded by the Tribunal. The learned counsel for the appellant/claimant contended that the compensation granted by the Tribunal under different heads is on the lower side and that the amount of compensation under the heads loss of income, personal expenses, transportation expenses, extra nourishment, damages to clothing, pain and suffering, loss of amenities and enjoyment of life and compensation for permanent disability are liable to the enhanced. 2.For the sake of convenience, hereafter in this judgment, the parties are referred to in accordance with their status in O.P.(MV) **M.A.C.A.1032 & 1778/2012** 3 No.395/06. We will firstly consider whether the contentions raised in M.A.C.A. No.1032/12 by the second respondent are sustainable. The claimant produced Exts.A1 and A2 to establish prima facie the negligence on the part of the first respondent, the driver of the KSRTC bus as the cause of the accident. A perusal of Ext.A1 which is the copy of the F.I.R. would reveal that Crime No.555/2005 of Kasaragod police station was registered against the first respondent in connection with the accident. As per Ext.A2 final report, after the investigation, charge was laid against him for commission of offences under Sections 279, 337 and 304(A) of the Indian Penal Code. 3.The accident in question occurred at about 7 p.m on 31.07.2005. The claimant was a pillion rider on a scooter bearing Reg.No.KL. 14E/3863, which was proceeding from Nullippady to Vidyanagar and when it reached Anangoor, the offending vehicle which is a KSRTC bus bearing Reg.No.KL/15/4151 coming from the opposite direction dashed against his scooter. Consequently, the rider **M.A.C.A.1032 & 1778/2012** 4 of the scooter succumbed to the injuries and the claimant escaped with serious injuries. The claimant was taken to Carewell Hospital, Nullippady in Kasaragod district. He was discharged from the hospital on 02.08.2005 and subsequently, he was admitted in A.J. Hospital, Mangalore and even thereafter, he had two spells of hospitalisation in District Ayurveda Hospital, Padannakkad, Kasaragod. Ext.X1, Medical Certificate issued from District Hospital, Kanhangad would reveal that in the accident he incurred 40% of permanent disability. It is in the said circumstances that seeking compensation for the injuries sustained, O.P.(MV)No.395/06 has been filed by the claimant. In the enquiry, in support of his claim for compensation, the claimant got marked Exts.A1 to A13 series. Ext.X1 is a medical certificate issued from the District Hospital, Kanhangad. It is a Court Exhibit. On the side of the respondents, the first respondent got himself examined as RW1. However, no documentary evidence was adduced by the respondents. The impugned award was passed for a total compensation of `2,17,320/- **M.A.C.A.1032 & 1778/2012** 5 after appreciating the evidence on record and considering the rival contentions. 4.Twin contentions have been raised in the former appeal to mount challenge against the award. Essentially, the first contention is that the Tribunal erred in not finding negligence on the part of the third respondent, the rider of the motor cycle involved in the accident. It is to be noted that the accident is not disputed. The offending vehicle belongs to the 2[nd] respondent. According to the second respondent, the evidence of the first respondent, the driver of the KSRTC bus would reveal that he was driving the vehicle from east to west and when the bus reached near Anangoor petrol pump, a motor cycle came from the opposite side and the scooter which involved in the accident was proceeding behind the said motor cycle. The third respondent turned his motor cycle towards the petrol pump viz., to the northern side without giving any signal. Consequently, the scooter hit against the motor cycle and the rider of both the motor cycle and the **M.A.C.A.1032 & 1778/2012** 6 claimant, who was the pillion rider on it fell down and sustained injuries. Evidently, the Tribunal considered the sustainability of such a contention taking into account the documentary evidence in Exts.A1 and A2 and the oral evidence of RW1. The Tribunal found that apart from the oral evidence of the first respondent as RW1 there is absolutely no evidence on record to reveal the involvement of a motor cycle in the accident. The Tribunal took note of the fact that pursuant to the accident in question, Crime No.555/05 was registered at Kasaragod Police Station only against the first respondent and after the investigation, a final report was also laid against him alleging commission of offences under Sections 279, 337 and 304(A) of the IPC. It is to be noted that the final report was filed against the first respondent essentially after conducting an investigation pursuant to the registration of the aforementioned crime. In such circumstances, the Tribunal declined to accept the oral version of RW1 and in the light of the unrebutted position obtained from Exts.A1 and A2, arrived at the conclusion that the accident occurred solely due to the rashness **M.A.C.A.1032 & 1778/2012** 7 and negligence on the part of the first respondent, the driver of KSRTC bus. It is to be noted that in this case, though the respondents took up the contention that the accident had not occurred owing to the negligence from the part of the first respondent, none of them cared to produce the scene mahazar. The indisputable position obtained in this case is that pursuant to the accident crime was registered only against the first respondent, the driver of the KSRTC bus. After the investigation, charge was also laid against him for committing offences under Sections 279, 337 and 304(A) IPC. In the absence of any supporting evidence, the oral testimony of RW1 is too insufficient to hold that a motor cycle too, involved in the accident and that the owner-cum-rider of the motor cycle viz., the third respondent had also contributed to the accident in question. The said aspects dissuade us from accepting the contention of the second respondent that the Tribunal erred in finding that the accident occurred solely due to the negligence from the part of the 3[rd] respondent. The Tribunal specifically arrived at a finding that there is absolutely no indication at **M.A.C.A.1032 & 1778/2012** 8 all, either in Ext.A1 or Ext.A2, regarding the involvement of any motor cycle. Taking into account such circumstances, it can only be held that the Tribunal has rightly concluded that the accident occurred solely due to the negligence on the part of the first respondent. Since the bus is a KSRTC bus the second respondent was found vicariously liable to compensate the claimant. As noticed hereinbefore, the second contention taken up by the second respondent in the former appeal is to the effect that the Tribunal fixed the interest at the rate of 8% exorbitantly and according to the second respondent, the rate of interest ought to have been only 6%. The accident occurred in the year 2005 and the award was passed by the Tribunal in the year 2011. Taking into account such aspects, we do not find any substance in the contention that the rate of interest fixed by the Tribunal is exorbitant warranting appellate interference. We are of the view that the interest fixed by the Tribunal at 8% is reasonable and there is absolutely no reason for interfering with the fixation of interest at the rate of 8%. In the said circumstances, M.A.C.A.No.1032/2012 is liable to fail. **M.A.C.A.1032 & 1778/2012** 9 5.With respect to the latter appeal, as noticed hereinbefore, the contention of the appellant is that the Tribunal fixed compensation under different heads mentioned hereinbefore specifically, at lower rate. In the claim petition the claimant/appellant in the latter appeal claimed that he was a Coolie and he was earning an income of `4,000/- per month. True that he has not produced any evidence in support of his claim. Though it was a claim for the injuries sustained, the claimant-injured has not chosen to mount the box and to give evidence. At the same time, we are of the view that for the purpose of fixing the multiplicand taking into account the said contention specifically taken by the claimant in the claim petition, the decision of the Hon'ble Apex Court in _**Ramachandrappa v. Manager Royal Sundaram Alliance Insurance Company Ltd**_ reported in _**2011(13) SCC 236**_ ought to have been looked into. The accident involved in _case_ _**Ramachandrappa's**_ had occurred in the year 2004. The Hon'ble Apex Court fixed the monthly income of the claimant as coolie, notionally at `4,500/-. The accident in question occurred on **M.A.C.A.1032 & 1778/2012** 10 31.07.2005. In the said circumstances, we are of the considered view that for the purpose of computing the compensation under the head of 'permanent disability' the multiplicand has to be fixed notionally taking into account the decision of the Hon'ble Apex Court and accordingly, we fix the monthly income of the claimant notionally at `4,500/-. It is conceded before us that the multiplier has been correctly taken by the Tribunal as '18' with reference to the age of the injured. Going by Ext.X1, the District Medical Board, Kanhangad assessed the permanent disability of the claimant as 48%. The Tribunal took note of the fact that the said disability was assessed with regard to the right upper limb of the claimant. Taking note of the fact that the whole body disability was not assessed by the Medical Board, the Tribunal took 24% as the whole body disability. The learned counsel for the appellant contended that the said erroneous estimation of the whole body disability resulted in denial of just compensation to the claimant. The question, now to be considered is whether the Tribunal was justified in taking the whole body disability as 24% in **M.A.C.A.1032 & 1778/2012** 11 the light of Ext.X1 disability certificate. Going by Ext.X1, there is complete brachial plexus injury and injury to the network on the right upper hand. It would certainly disable a person to engage himself in the activities as a coolie. We are of the view that taking into account the said position discernible from a perusal of Ext.X1 disability certificate, a higher percentage of permanent disability ought to have been taken. But at the same time, the permanent disability cannot be more than what is to be assessed in a case of amputation of the right upper limb. In such circumstances, we are of the view that for the purpose of calculating the amount of compensation payable for permanent disability, the percentage of permanent disability can be taken as 40%. Upon re-assessment of the compensation for permanent disability, taking into account the monthly income fixed notionally by us at `4500/- and percentage of disability as 40%, the claimant would be entitled to get `3,88,800/-. As per the impugned award, the Tribunal has already granted an amount of `1,55,520/under the said head. In such circumstances, the claimant-appellant is **M.A.C.A.1032 & 1778/2012** 12 entitled to get an amount of `2,33,280/- additionally under the said head. The Tribunal took only a period of five months for the purpose of assessing the loss of income taking note of the fact that after the initial period of hospitalisation, the appellant had two spells of hospitalisation in District Ayurvedic Hospital, Padannakkad. We are of the view that for the aforesaid purpose, a period of 8 months ought to have been taken taking into account the continued treatment underwent by the claimant. In view of the fact that we have already fixed the monthly income notionally at `4,500/- and taking the period to be reckoned as 8 months, the claimant is entitled to get an amount of `21,000/- more under the said head. Towards bystander expenses an amount of `10,000/-was claimed and the Tribunal granted an amount of `2,500/-. As the accident occurred in the year 2005, we are of the view that the rate of bystander expenses ought to have been `200/- per day and taking into account the long period of treatment, it should have been given at that rate for 30 days. When assessed in that manner, the appellant is entitled to get `3,500/- additionally under the **M.A.C.A.1032 & 1778/2012** 13 said head. Towards transportation expenses, an amount of `15,000/was claimed and the Tribunal granted only `1,000/-. Taking into account the spells of hospitalisation, we are of the view that the appellant is entitled to get `4,000/- more towards transportation expenses. We award the said amount. Towards extra nourishment, taking into account the aforesaid circumstances, we are of the view that the appellant is entitled to get `4,000/- more under the said head. Towards damage to clothing, an amount of `750/- was claimed and the Tribunal granted an amount of `500/-. The nature of the injuries sustained would undoubtedly go to show that in the accident, the dresses worn by the appellant must have been damaged completely. In such circumstances, we award the entire amount viz., `750/- under the said head. Taking note of the fact that `500/- was already granted, the appellant is entitled to get `250/- more under the said head. Towards pain and suffering, the appellant claimed an amount of `50,000/-. However, the Tribunal granted an amount of `12,000/-. The nature of the injuries sustained by the claimant is evident from Exts.A3, A4 and **M.A.C.A.1032 & 1778/2012** 14 A6. They would reveal that owing to the injuries sustained, the claimant-appellant must have experienced excruciating pain. In such circumstances, he has to be compensated properly under the head pain and suffering. The amount fixed by the Tribunal as compensation under that head viz., `12,000/- is too inadequate and therefore, we are inclined to grant `18,000/- more under the said head. Towards loss of amenities and enjoyment of life `15,000/- was claimed and an amount of `10,000/- was granted by the Tribunal. Taking note of Ext.X1 disability certificate, it is evident that the appellant cannot enjoy his life in the manner as has been enjoyed by him before the accident. In such circumstances, we are inclined to award `10,000/- more under the said head. The upshot of the above discussions is that the claimant-appellant is entitled to get a total enhanced amount of `2,94,030/-. The said amount will carry interest @ 8% per annum from the date of the petition till realisation. The second respondent is directed to deposit the enhanced amount within a period of five months from the date of receipt of a copy of this judgment. In case of **M.A.C.A.1032 & 1778/2012** 15 failure to pay the amount within the above stipulated time, the amount remaining to be paid will carry interest @ 9%. There will be no order as to costs. In the result, M.A.C.A.No.1032 of 2012 is dismissed and M.A.C.A No.1778 of 2012 is allowed as above. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **MARY JOSEPH (JUDGE)** **spc/** **M.A.C.A.1032 & 1778/2012** 16 **C.T. RAVIKUMAR, J.** **M.A.C.A.1032 & 1778/2012** 17 **JUDGMENT September, 2010**