Managing Director, Tamil Nadu State Transport Corporation v Sahaya Leenus, Kanakaraj, P.K. Srinivasan and The Divisional Manager, National Insurance Company

**MACA NO. 1462 OF 2012** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943** **MACA NO. 1462 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 817/2005 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM** ## **APPELLANT/RESPONDENT:** THE MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION TAMIL NADU STATE TRANSPORT CORPORATION,MADURAIDIVISION III,NAGERCOIL. BY ADV SRI.SUBHASH CYRIAC ## **RESPONDENTS/APPLICANT & RESPONDENTS 2 TO 4:** 1 SAHAYA LEENUS S/O.JOSEPH,ASWATHI,MANALIVILA VEEDU,KOZHIVILA,PARASSALA.P.O,PIN-695502. 2 KANAKARAJ S/O.SWAMINATHAN,VAZHATHAVILA VEEDU,NATTALAM.P.O,MARTHANDUM,PIN-695502. 3 P.K.SRINIVASAN, S/O.PALAYAM,VILAVANVILAI,KANYAKUMARI DISTRICT,PIN-629152. 4 THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY,GANDHRIX AMMAN COIL ROAD,THIRUVANANTHAPURAM-695001. BY ADVS. SRI.L.MOHANAN SMT.SARAH SALVY SRI.RAJESH THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1462 OF 2012** **2** ## **JUDGMENT** The 1[st] respondent in O.P (MV) No.817/2005 on the file of the Motor Accident Claims Tribunal, Neyyattinkara is the appellant. The claimant and the respondents 2 to 4 in the claim petition are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The facts in the claim petition, relevant for the determination of the appeal, are: on 19.1.2005 while the petitioner was riding his motor cycle bearing Reg.No. TN 74 -W 5218 along the Thakkala-Marthandam Pubic Road, while he reached Kalluvila junction, a bus bearing Reg. No. TN.074/0610 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner came from the opposite direction and hit the motorcycle of the petitioner. The petitioner was thrown on the road and he sustained multiple abrasions, wounds and swellings on his right AC joint, commuted fracture right scapula, mid shaft of femur, **MACA NO. 1462 OF 2012** **3** separation of pubic symphysis and tibial attachment. The petitioner was treated at the Krishnakumar Orthopaedics Hospital, Nagercoil. The petitioner was aged 33 years at the time of accident. He was doing Motor oil business earning a monthly income of Rs.4,000/-. The offending vehicle was owned by the 1[st] respondent and was driven by the 2[nd] respondent. The 3[rd] respondent was the owner of the motorcycle and the 4[th] respondent was the insurer of the motorcycle. The accident occurred solely due to the rash and negligent driving of the 2[nd] respondent. Hence, the respondents 1 and 2 were jointly and severally liable to pay compensation to the petitioner, which he quantified at Rs.11,98,500/-, but restricted to Rs.10,00,000/-. 3. The respondents 3 and 4 did not contest the proceedings. The respondents 1 and 2 had filed a joint written statement, inter alia, contending that the amount of compensation claimed was excessive and exorbitant. The 2[nd] respondent drove the offending vehicle in a careful manner obeying the traffic rules. The accident occurred due to the negligence on the part of the petitioner. **MACA NO. 1462 OF 2012** **4** 4. The petitioner produced and marked Exts.A1 to A8 series in evidence. The petitioner presented himself before the Tribunal and the Tribunal took note of the injuries sustained by him. 5. The Tribunal, after considering the pleadings and materials on record and after evaluating the injuries of the petitioner, by the impugned award, allowed the claim petition, in part, by directing the 1[st] respondent to pay an amount of Rs.6,86,622/- with interest at the rate of 9% per annum from 5.5.2005 till the date of realisation. 6. Aggrieved by the quantum of compensation awarded by the Tribunal, the 1[st] respondent is in appeal. 7. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the 1[st] respondent and the learned counsel appearing for the 4[th] respondent--Insurance Company. 8. The question that emerges for consideration in the appeal is whether the impugned award passed by the Tribunal is erroneous or not? 9. The learned counsel appearing for the appellant argued that the Tribunal has gone wrong in fixing the **MACA NO. 1462 OF 2012** **5** disability of the petitioner based on Ext.A5 disability certificate. According to him, the petitioner ought to have examined the author of Ext.A5 certificate. In view of nonexamination of the Doctor who issued Ext.A5, the fixing of disability of the petitioner at 22% is erroneous and liable to be set aside. Similarly, the quantum of compensation awarded under the different heads is also excessive. 10. Per contra, the learned counsel appearing for the 1[st] respondent/petitioner argued that the Tribunal has given specific reasons for fixing the disability of the petitioner. In fact, the Tribunal in paragraph 12 of the impugned award has stated reasons for fixing the disability of the petitioner. The petitioner was directed to be present before the Tribunal on 3.2.2011. It was found that the petitioner was limping and that he was unable to raise his right hand. Similarly, long surgical scars were seen on his right shoulder, rear and lateral sides on the right upper leg and right hip. He also complained to the Tribunal that he is suffereing from severe pain at the hip area and he was unable to do any work. The petitioner bore a weary and unhealthy look. It was in such circumstances that the **MACA NO. 1462 OF 2012** **6** Tribunal fixed the permanent residual disability of the petitioner at 22%. 11. It is true that the Hon'ble Supreme Court in **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] has held that the mere production of the disability certificate is not sufficient to prove the disability of an injured and that the Tribunal should not mechanically apply the percentage of permanent disability. 12. The petitioner had produced Ext.A5 disability certificate and the Tribunal had taken judicial notice of the disabilities of the petitioner and found that he had limped while he was walking and that he was unable to raise his right hand. Likewise, he had surgical scars all across his body and he had severe pain on his hip area. It was in the said peculiar and facts and circumstances that the Tribunal arrived at a conclusion and fixed the permanent residual disability of the petitioner at 22%. This fact finding exercise carried out by the Tribunal as an expert, cannot be found fault with especially when corroborated with Ext.A5 disability certificate. Therefore, I am of the considered opinion that the contention that the Doctor who **MACA NO. 1462 OF 2012** **7** issued Ext.A5 had to be examined for assessing the disability of the petitioner is unsustainable in law. The method adopted by the Tribunal especially after taking note of the serious injuries of the petitioner and fixing the disability of the petitioner at 22% is only reasonable and in accordance with law. Hence, I accept the findings of the Tribunal with regard to the disability of the petitioner at 22%. 13. 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 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 standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 14. Going by the fact that the petitioner was doing motor oil business and getting a monthly income of Rs.4,000/- in the year 2005, I find that the quantum of **MACA NO. 1462 OF 2012** **8** compensation awarded by the Tribunal under the various heads to be reasonable and just. 15. It is also to be noted that the petitioner had incurred an amount of Rs.4,66,702/- for his medical treatment. Accordingly, the Tribunal awarded consequential amounts under different heads. 16. On an overall re-appreciation of the pleadings, materials on record and after hearing the respective counsel on both the parties and also taking note of the fact that the Tribunal had evaluated the disability and the graveness of the injuries sustained by the petitioner, I do not find any error in the impugned award warranting any interference by this Court in exercise of its appellate jurisdiction. In the result, the appeal is dismissed. Sd/- **C.S.DIAS, JUDGE** ma/23.06.2021 /True copy/