Muhammed Hanees K.A. v KSRTC; Shiyas T.A v KSRTC (MACA Nos. 1910/2012 and 1884/2012)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 ``` ## **`MACA NO. 1910 OF 2012`** ## **`AGAINST THE ORDER/JUDGMENT OPMV 786/2008 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL , IRINJALAKUDA`** ## **`APPELLANT/S:`** ``` MUHAMMED HANEES K.A. S/O.ABDUL RAHIMAN,KARUPPAMVEETIL HOUSE,NELPANI DESOM,S.N.PURAM VILLAGE,PANANGAD.P.O,THRISSUR DISTRICT. ``` ``` BY ADV SRI.V.BINOY RAM ``` ## **`RESPONDENT/S:`** - `1 THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT` - `CORPORATION,TRANSPORTBHAVAN,VAZHUTHACAUD,THIRUVAN ANTHAPURAM.` - `2 VASU S/O.THAMI,KARIKULATHARAYIL` - `HOUSE,PALLIPURATHUPADAM,ATHIROOR,CHAMRAVATTOM,MAL APPURAM DISTRICT,PIN-676110.` ``` BY ADV ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2024, ALONG WITH MACA.1884/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1910/2012 : 2 : # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 MACA NO. 1884 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 589/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA ``` ## **`APPELLANT/S:`** ``` SHIYAS T.A S/O ABDUL NAZAR, THARUPEEDIKAYIL HOUSE, NELPANI DESOM, S.N. PURAM VILLAGE, PANANGAD P.O, THRISSUR DISTRICT ``` ``` BY ADV SRI.V.BINOY RAM ``` ## **`RESPONDENT/S:`** ``` 1THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, VAZHUTHAKKAD, THIRUVANANTHAPURAM 695001 2VASU S/O THAMI, KARIKULATHARAYIL HOUSE, PALLIPURATHUPADAM, ATHIROOR, CHAMRAVATTOM, MALAPPURAM DISTRICT 676110 BY ADVS. SRI.P.C.CHACKO(PARATHANAM) ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2024, ALONG WITH MACA.1910/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1910/2012 : 3 : ## JUDGMENT Both these appeals arise from a common award passed in O.P (MV) Nos. 589/2008 and 786/2008 by the Motor Accident Claims Tribunal, Irinjalakuda. The said claim petitions were submitted by the respective claimants seeking compensation for the injuries sustained to them in a motor accident that occurred on 28.04.2008. 2. According to them, the accident occurred when the motorcycle ridden by the petitioner in O.P (M.V) 589/2008 with the petitioner in O.P (MV) 786/2008 as pillion rider, was hit by a K.S.R.T.C bus driven by the 2[nd] respondent. The claim petition was submitted in such circumstances. 3. The 1[st] respondent, the Managing Director of KSRTC, filed a written statement, disputing the negligence on the part of the 2[nd] respondent. According to them, the accident occurred due to the negligence of the rider of the motorcycle. They also disputed the quantum of compensation claimed. 4. The evidence in this case consists of oral testimonies of PW1 to PW3 and as documentary evidence Ext.A1 to A25 were M.A.C.A. No.1910/2012 : 4 : marked. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the 2[nd] respondent, the driver of the bus and thus both respondents were held liable to pay the compensation jointly and severally. In O.P (MV) 786/2008, tribunal awarded a total compensation of Rs. 4,46,104/- and in O.P (M.V) 589/2008 an amount of Rs. 1,92,864/- was granted. The said amounts were recoverable from the respondents with interest at the rate of 7.5% per annum from the date of petition till realisation. These appeals were submitted by the respective claimants seeking enhancement of compensation. 4. Heard Sri. Binoy Ram V., the learned counsel appearing for the appellants/claimants and Sri. Alex Antony Sebastian learned counsel appearing for the 1[st] respondent in both appeals. ## O.P (M.V) 786/2008 which is the subject matter in MACA No. 1910/2012 5. The claimant in this case was 19 years old and was a driver by profession. The monthly income claimed was Rs. 4,500/-. The records would reveal that consequent to the accident, he sustained the following injuries; “1) Type III B compound comminuted supra condylar fracture femur right M.A.C.A. No.1910/2012 : 5 : (2) Type II compound fracture both bones right leg - (3) Punctured lacerated wound over right leg upper 3[rd] antero lateral aspect - (4) Lacerations and abrasions on the right side of neck (5) Open wound lateral aspect of lower 3[rd] of right thigh with proximal shaft femur exposed through the wound (6) Wound debridement and external fixation was applied. (7) Ilizarov fixation -bifocal femur and monofocal tibia was applied. (8) Skin grafting was done.” 6. He was hospitalised for a total period of 104 days. Ext. A11 is the disability certificate wherein it was certified that he suffered 27% whole-body disability. The said certificate was proved by PW2, the Doctor who issued the same. 7. The major contest in this case relates to the monthly income taken by the tribunal. According to the appellant, even though an amount of Rs.4,500/- was claimed, the tribunal took only a meagre amount of Rs.2500/-. On perusal of the records, I find force in the said contention. It is to be noticed that in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], the Hon’ble Supreme Court was pleased to take the monthly income of an ordinary worker as Rs.4,500/- in respect of an accident occurred the year 2004. In this case, the accident occurred in the year 2008. Therefore, Rs.4,500/claimed by the appellant appears to be reasonable and hence it is accepted. Thus while reassessing the compensation for disability M.A.C.A. No.1910/2012 : 6 : with the revised monthly income and keeping the other parameters adopted by the tribunal intact, the amount of compensation would come to Rs.2,62,440/- (4500x12x18x27/100). The amount already awarded by the tribunal was Rs.1,45,800 and thus, the additional compensation under this head would come to Rs.1,16,640/-. 8. When moving on to the other heads, it is seen that, the amount of Rs.20,000/- was granted for pain and sufferings, which appears to be on the lower side. When going through the nature of injuries as referred to above and considering the fact that he had undergone inpatient treatment for 104 days, certainly some additional amount needs to be granted. In the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.20,000/- under this head. 9. It is to be noted that no amount was granted towards the loss of amenities. Evidently, he sustained physical disability of 27% at the age of 19 years. Therefore, certainly, some more amounts need to be granted for the loss of amenities as he has to live with the disability throughout his life. In the facts and circumstances of the case, I deem it appropriate to grant an amount of Rs.40,000/under the said head. No amount is seen granted towards loss of M.A.C.A. No.1910/2012 : 7 : income. The nature of the injuries certainly would have prevented him from pursuing employment for a period of at least four months. This was particularly because, he had undergone inpatient treatment for a period of 104 days. Thus the compensation under this head would come to Rs.18,000/- (4500x4). Thus the total additional compensation receivable by the appellant in O.P. (MV) No.786/2008 is fixed as Rs.1,94,640/- [116640+20000+40000+ 18000]. ## OP(MV) No.589/2008 which is the subject matter in MACA 1884/2012 10. This is a case in which the injuries were sustained by a victim who was aged 22 years old at the time of the accident. He was working as a heavy vehicle driver with a monthly income of Rs.4,500/-. Due to the accident, he sustained the following injuries: |“(1)|Type III compound fracture (R) tibia| |---|---| |(2)|Type III compound fracture (R) fibula| |(3)|Fracture middle 3rdof right ulna| |(4)|Compound fracture right knee with quadriceps| ||rupture| |(5)|Right foot drop| |(6)|Fracture left temporal bone| |(7)|Lacerated wound 10x5 cm supra patellar region| ||exposing knee joint| |(8)|Lacerated wound 3x2 cm over fracture tibia with| ||segmental loss of anterior compartment muscle| ||soft tissue| |(9)|Frank mobility (R) leg| |(10)|Lacerated wound 2x2 cm over dorsum of foot| M.A.C.A. No.1910/2012 : 8 : - (11) Quadriceps repair done - (12) Ender nailing done on right tibia & fibula - (13) Intra medullary nailing with lambrinudi nail done on (R) ulna. - (14) Skin grafting done on (R) foot - (15) Above knee slab was given on (R) leg” He produced Ext.A17 disability certificate wherein the extent of whole body disability was certified as 17% and the Doctor who issued the said certificate was marked as PW3. 11. In this case, the main contest is in respect of the monthly income. According to the appellant, even though he claimed a monthly income of Rs.4,500/-, the tribunal took the monthly income only as Rs.3000/-, which is too meagre. I find force in the said contention as the accident in this case, occurred in 2008. As observed above, in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], the Hon’ble Supreme Court took the monthly income of an ordinary employee Rs.4,500/- for the year 2004. Therefore, the monthly income claimed in this case appears to be reasonable and it is accordingly accepted. Thus, while reassessing the compensation for disability with the revised monthly income of Rs.4500/- and by keeping the other parameters adopted by the tribunal intact, the amount of compensation for disability would come to Rs. 1,65,240/- M.A.C.A. No.1910/2012 : 9 : [4500x12x18x17%]. The amount already awarded by the tribunal is 1,10,160/-. Thus, the additional compensation would come to Rs.55,080/-. 12. No amount is seen awarded by the tribunal towards loss of income. Considering the nature of the injuries and the period of inpatient treatment, which lasted for 17 days, I am of the view that he must have prevented from pursuing his employment at least for a period of three months. Therefore, an amount of Rs.13,500/[4500x3] is awarded under the said head. The other head which requires reconsideration is pain and suffering. Rs.15,000/- is the amount awarded, which appears to be on the lower side. Considering the nature of the injuries, the period of hospitalisation and the disability that resulted therefrom, I deem it appropriate to grant a further sum of Rs.15,000/- under the said head. 13. No amount is seen awarded towards loss of amenities. Considering the fact that the appellant sustained serious injuries and the disability of 17%, an amount of Rs.30,000/- is awarded under the said head. Thus, the total compensation receivable by the appellant in this case is determined as Rs.1,13,580/[55080+13500+15000+30000] M.A.C.A. No.1910/2012 : 10 : ## In the light of the aforesaid observations and findings this appeal is allowed. - (1) The award dated 14.05.2012 in OP(MV) No.786/2008 passed by the Motor Accident Claims Tribunal, Irinjalakuda is hereby modified by granting an additional compensation of Rs.1,94,640/- (Rupees one lakh, ninety four thousand , six hundred and forty only) which is recoverable from the respondents with interest at the rate as ordered by the tribunal and proportionate costs. - (2) The award dated 14.05.2012 in OP(MV) No.589/2008 passed by the Motor Accident Claims Tribunal, Irinjalakuda is hereby modified by granting an additional compensation of Rs.1,13,580/- (Rupees one lakh thirteen thousand , five hundred and eighty only) and the said amount shall be recoverable with interest at the rate as ordered by the tribunal with proportionate costs from the respondents herein. Sd/ZIYAD RAHMAN A.A. JUDGE akn/ncd/