Mathew Thomas v. The Managing Director, Kerala State Road Transport Corporation

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 ``` ``` MACA NO. 1109 OF 2013 ``` ``` AGAINST THE AWARD DATED 31.01.2013 IN O.P.(M.V) NO.173/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANT/PETITIONER:`** ``` MATHEW THOMAS, S/O. THOMAS, EZHUTHUALLICKAL HOUSE, MEVADA KARA, MEVADA P O, MEENACHIL, KOTTAYAM DISTRICT ``` ``` BY ADVS.SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM, PIN-695 001 ``` ``` BY ADV. SRI.ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1109 of 2013 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 27[th] day of October, 2022`** This appeal is originated from an award passed by Motor Accidents Claims Tribunal, Pala (for short ‘the Tribunal’) on 31.01.2013 in O.P(M.V.) No.173/2009. Appellant is the petitioner before the Tribunal. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 and 2 in accordance with their status in the Original Petition. 2. The petitioner had filed the Original Petition seeking for Rs.2,50,000/- as compensation. The Tribunal had considered his claim on the basis of the evidence adduced by him and arrived at Rs.2,73,630/- as the total compensation payable. It directed the 2[nd] respondent to deposit the said sum alongwith interest and cost, within 60 days from the date of the award. The said award is taken in challenge in the appeal on hand by the petitioner for the reason that the amount stands awarded as compensation is disproportionate to the injuries sustained in the motor accident and therefore, is unjust and unreasonable. ``` M.A.C.A.No.1109 of 2013 ``` ``` 3 ``` 3. The facts of the case in brief are as follows: The petitioner was aged 26 years at the time of the accident, working as a wood cutter in a saw-mill at Ramamangalam and earning Rs.7,000/- per month. He met with a motor accident at 6 pm on 10.08.2008 infront of the sawmill where he was working. He was riding a Motorcyle bearing Registration No.KL-39/2236 from west to east and was hit by a K.S.R.T.C bus bearing Registration No.KL-15/5979 due to the rash and negligent driving by it’s driver. He sustained serious injuries and was treated at Medical College Hospital, Kottayam as inpatient for several days. Treatment as outpatient also continued for several days. Alleging that the accident was occurred due to the rash and negligent driving of the K.S.R.T.C bus by its driver and raising a claim of Rs.2,50,000/- as compensation from the driver and the owner of the K.S.R.T.C bus jointly and severally, the Original Petition referred to above was filed before the Tribunal. 4. The 1[st] respondent did not contest the case. The 2[nd] respondent filed written statement disputing the occupation as well as the monthly income of the petitioner. According to him, the K.S.R.T.C bus was driven by its driver with moderate speed ``` M.A.C.A.No.1109 of 2013 ``` ``` 4 ``` and observing the traffic rules and the accident was occurred due to the rash and negligent riding of the Motorcycle by the petitioner. The amount claimed as compensation is also disputed for it’s exorbitant nature. PW1 to PW3 were examined on the side of the petitioner and Exts.A1 to A18 and Ext.X1, were marked in evidence. 5. According to Sri.Thomas Abraham, the learned counsel, the petitioner claimed to be a wood cutter in a saw-mill owned by another person. Ext.A18 is a certificate issued by the owner of the Mill where the petitioner was working and Rs.7,000/- was certified as his monthly earning at the relevant time. The petitioner as well as the owner of the Mill, where he was working were examined respectively as PW1 and PW2. Ext.A18 was marked through PW2. But in cross examination it has come out that the Mill where PW1 admittedly working was a registered one. During cross examination PW2 has stated that a register is not maintained there incorporating the particulars of the employees and the wages given to each of them. In the above circumstances that the Tribunal found the evidence of PW1 and PW2 regarding the occupation and monthly income, unreliable and discarded. Thus, the monthly income was fixed ``` M.A.C.A.No.1109 of 2013 ``` ``` 5 ``` as Rs.4,000/- on a notional basis. But the accident being occurred in the year 2008, this Court finds it appropriate to refix the monthly income as Rs.6,500/-. 6. It is noticed from the documentary evidence on record that the petitioner was taken to Medical College Hospital, Kottayam immediately after the motor accident and Ext.A4 wound certificate was prepared and issued therefrom. Multiple lacerated wounds 5x2x1cm and 4x2x1cm on scalp and another one 2x1x.5cm below right knee were reported as sustained by him in the motor accident. A raw area of 6x4 cm was also found on the dorsum of right ankle. Comminuted fracture of right Tibia was also detected in the X-ray taken. He was treated as inpatient from 10.08.2008 to 02.09.2008. Wound debridement and external fixation were done as procedures of treatment. Skin grafting was also done. Graft was fully taken up and at the time of discharge, medication was advised. Ext.A6 is another discharge card which shows that the petitioner was readmitted in the Hospital on 28.03.2009 and was treated as inpatient till 12.05.2009. Bone grafting of Tibia was done. Wound was found infected and therefore cleaning and dressing on a daily basis was advised. Wound irrigation was also advised to be done daily ``` M.A.C.A.No.1109 of 2013 ``` ``` 6 ``` at a local hospital. Outpatient treatment continued till 13.06.2009. He was admitted at the hospital again on 02.01.2012 and was treated there till 07.01.2012. X-ray was repeated and the fracture was found united, but infected. Therefore the interlocking was advised to be removed. Cleaning and dressing were done till 12.01.2012. Ext.A8 is another discharge card which shows inpatient treatment from 12.01.2012 till 20.01.2012. Fracture of both bones of right leg was found united, but chronic osteomyelitis of tibia was found developed. Due to discharging sinus, he was readmitted. Exts.A9 and A10 are O.P tickets which indicate outpatient treatment. 7. Considering the nature of injuries sustained and the prolonged treatment undergone, there is every justification in taking 12 months’ period for the purpose of computation of compensation for loss of earning. The Tribunal has taken only a period of four months for assessment of compensation for loss of earning. Compensation for loss of earning when reassessed with the monthly income re-fixed as Rs.6,500/- and the period as 12 months Rs.78,000/- is arrived at. Rs.16,000/- stands awarded by the Tribunal when deducted from the sum now arrived at, the petitioner will get Rs.62,000/- as additional compensation ``` M.A.C.A.No.1109 of 2013 ``` ``` 7 ``` towards loss of earning. 8. As compensation towards transportation expenses, Rs.3,000/-, was awarded by the Tribunal and this Court is inclined to enhance it to Rs.8,000/- in consideration of the continuous treatment undergone for a prolonged period. Thus, the petitioner will get Rs.5,000/- as additional compensation. As compensation towards bystander expenses, the Tribunal arrived at Rs.10,600/- by considering Rs.200/- per day for 53 days. The accident was occurred in the year 2009 and therefore, this Court finds it appropriate to consider Rs.250/- per day and thus Rs.13,250/- is arrived at as the compensation payable. When Rs.10,600/- stands awarded is deducted from the sum now arrived at as payable, the petitioner will get Rs.2,650/- as additional compensation. 9. As compensation towards extra nourishment, this Court is inclined to modify Rs.1,000/- stands awarded by the Tribunal as compensation, to Rs.5,000/- and therefore, the petitioner will get Rs.4,000/- as additional compensation. As compensation towards damages to clothing this Court is inclined to award Rs.500/- more to make it Rs.1,000/-. As compensation towards pain and suffering, the Tribunal has ``` M.A.C.A.No.1109 of 2013 ``` ``` 8 ``` awarded Rs.20,000/- and it being too low and disproportionate to the sufferings of the petitioner following the motor accident, this Court is inclined to enhance it to Rs.50,000/-. Therefore, the petitioner will get Rs.30,000/- as additional compensation. As compensation towards loss of amenities, Rs.10,000/- stands awarded by the Tribunal being disproportionate to the sufferings of the petitioner, this Court is inclined to modify it to Rs.30,000/and therefore, the petitioner will get Rs.20,000/- as additional compensation. 10. The multiplier was taken by the Tribunal as 18 and it being incorrect, the correct multiplier of 17 as per Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] is taken. Ext.X1 is a certificate issued by the Medical Board associated with Medical College Hospital, Kottayam wherein the permanent disability of the petitioner was assessed as 46%. The Tribunal considered only 20% and calculated compensation on it’s basis. It is pertinent to note that the Tribunal failed to assign any reason in the impugned award for taking a reduced percentage of disability than that stands assessed by the Medical Board. Petitioner as PW1 has stated orally about the difficulties suffered by him following the injuries ``` M.A.C.A.No.1109 of 2013 ``` ``` 9 ``` sustained in the motor accident and the treatment undergone by him. It is noticed from the various medical documents on record that the petitioner underwent two surgeries, one for fixation of nailing and the other for it’s removal. It is also noticed that the wound at the site of nailing was infected and pus was found discharging therefrom. Therefore, he was advised to have cleaning and dressing on a daily basis and also removal of interlocking nailing. From the discharge summaries marked in evidence, it is evident that the petitioner had been subjected to an extensive treatment. The Medical Board has noticed in Ext.X1 that the petitioner developed Osteomyelitis of right Tibia, stiffness of right knee and ankle joint and shortening. Therefore, the assessment of 46% disability is validly substantiated by the reasons reported by the Medical Board while examining the petitioner and issuing Ext.X1. The difficulties noted in Ext.X1 were found to have been reported in the medical documents issued from the hospital where the petitioner had undergone treatment following the motor accident. Therefore, the Tribunal is not justified in considering only a lesser percentage of disability than that stands certified in Ext.X1. This Court finds every reason to take 46% itself as the ``` M.A.C.A.No.1109 of 2013 ``` ``` 10 ``` petitioner’s permanent whole body disability. This Court finds justification in considering loss of future prospects for him. The deceased being aged 26 years at the relevant time, in view of the dictum in National Insurance Company Limited v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)] 40% can be added to the re-fixed monthly income in consideration of future prospects. 11. When 40% is added to Rs.6,500/- refixed as the monthly income, Rs.9,100/- (Rs.6,500/- + Rs.2,600/-) is arrived at. When compensation for permanent disability is reassessed on the basis of the modified factors, Rs.8,53,944/- (Rs.9,100/- x 12 x 17 x 46/100) is arrived at . Rs.1,72,800/- stands awarded by the Tribunal when deducted from the above sum, the petitioner will get Rs.6,81,144/- (Rs.8,53,944/- - Rs.1,72,800/-) as additional compensation. 12. In the reassessment and modification of the compensation as above, the petitioner will get Rs.8,05,294/(Rupees Eight lakhs five thousand two hundred and ninety four only) as the total additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 2[nd] ``` M.A.C.A.No.1109 of 2013 ``` ``` 11 ``` respondent being the insurer of the offending vehicle shall deposit the total additional compensation with interest fixed for it and the compensation originally stands awarded by the Tribunal with interest fixed for it (if not already paid) within a period of two months from the date on which a certified copy of this judgment is received. 13. It is found that total compensation awarded infavour of the petitioner exceeds the claim of compensation of the petitioner in the Original Petition and therefore the Tribunal shall deduct court fee in proportion to the total compensation stands awarded. ## M.A.C.A stands allowed accordingly. Sd/- MARY JOSEPH JUDGE ``` NAB ```