Musthafa Kunju v. The Managing Director, Kerala State Road Transport Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 30[TH] DAY OF JUNE 2021 / 9TH ASHADHA, 1943** **MACA NO. 1423 OF 2006** **AGAINST THE AWARD IN OP(MV)NO. 449/2002 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** **MUSTHAFA KUNJU,S/O.MUHAMMED ALI, REPRESENTED BY HIS SON AND BEST FRIEND, M.NIZAR,, PATTAMAMOODU VEEDU, SREEKARIYAM (PO),, THIRUVANANTHAPURAM.** **BY ADVS. SRI.NAGARAJ NARAYANAN SRI.A.G.GIRISH KUMAR SRI.NAIR AJAY KRISHNAN SRI.N.NARAYANAN NAIR SRI.SAIJO HASSAN SRI.A.S.SABU SRI.VIMAL KUMAR.A.V.** ## **RESPONDENTS/RESPONDENTS:** **1 MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION,, TRANSPORT BHAVAN, THIRUVANANTHAPURAM.** ***2 P.K. MURALEEDHARAN S/O. KARUPPAN (DELETED) PARAYAN VILAPPIL VEEDU, PALISSERY (P.O),, THEKKUMMURI, MUKUNDAPURAM, THRISSUR.** **(IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 31.03.2021 IN I.A.NO.1/2021)** **3 M/S. NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE, 2ND FLOOR, KESAVA TOWERS,, GANDHARIAMMAN KOVIL ROAD, PULIMOODU,, THIRUVANANTHAPURAM.** _MACA No. 1423 of 2006_ _2_ ***4 NAZEEMA S. W/O.SYED MUHAMMED (DELETED) PATTAMAMOODU VEEDU, SREEKARIYAM (P.O),, THIRUVANANTHAPURAM-17.** **(IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 28.06.2017 IN I.A.NO.2153/2017)** **5 M/S. ORIENTAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE NO.1, THAKARAPARAMBU JUNCTION,, PAZHAVANGADI, THIRUVANANTHAPURAM.** **BY ADVS. SMT.BIMALA BABY, SC, KSRTC SRI.P.JACOB MATHEW SHRI.JOHNSON P.JOHN, SC, KSRTC SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 30.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No. 1423 of 2006_ _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1423 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of June, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.449 of 2002 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents in the appeal were the respondents in the claim petition. This Court by order dated 28.06.2017 and 31.03.2021 deleted the 4[th] respondent and the 2[nd] respondent, respectively, from the party array. Therefore, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 23.12.2001, while the petitioner was riding a Kinetic Honda Scooter bearing registration KL01/P 6872 along the Ullur-Sreekariyam public road with his wife _MACA No. 1423 of 2006_ _4_ as a pillion rider, when they reached Kallampally, a Bus bearing registration No.KL 15/3801 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner hit the Scooter of the appellant. The petitioner sustained serious injuries and his wife sustained to fatal injuries. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The Scooter was owned by the 4[th] respondent and insured with the 5[th] respondent. The petitioner was a tuition teacher by profession and earning a monthly income of Rs.3,000/-. The petitioner sustained an head injury and fractures on his right cavicle and scapula etc. He was admitted in the Medical College Hospital, Thiruvananthapuram and, thereafter, referred to the Sree Uthradam Thirunal He was Hospital, Thiruvananthapuram. treated as an in-patient from 23.12.2001 to 11.01.2002 and, then from 08.02.2002 to 18.02.2002. _MACA No. 1423 of 2006_ _5_ The petitioner is permanently disabled due to the accident. He contended that the respondents 1 to 3 were jointly and severally liable to pay compensation to him, which he quantified at Rs.7,70,500/-, but limited to Rs.7,00,000/- 3. The petitioner and his children filed OP(MV)No.452 of 2002 before the same Tribunal, claiming compensation on account of the death of the wife of the petitioner. 4. The 3[rd] respondent filed written statements in both the original petitions. It was conceded that the offending vehicle had a valid insurance policy. However, the 3[rd] respondent denied there was any negligence on the part of the 2[nd] respondent in driving the offending vehicle. 5. The Tribunal consolidated and jointly tried the original petitions. PWs 1 to 3 were examined on the side of the petitioner and Exts.A1 to A28 were _MACA No. 1423 of 2006_ _6_ ## marked in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by a common award allowed the claim petition filed by the petitioner, in part, by permitting him to recover an amount of Rs.2,58,000/- with interest at the rate of 9% per annum from 18.03.2012 till the date of realization and costs. The 3[rd] respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent-insurance company. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? _MACA No. 1423 of 2006_ _7_ 10. 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. 11. Ext.A4 final report filed by the police substantiates that the accident occurred on account of the negligence of the 2[nd] respondent, who drew the offending vehicle in a rash manner. Admittedly, the 1[st] respondent was the owner of the vehicle and the 3[rd] respondent was the insurer. Therefore, it is the 3[rd] respondent who is liable to indemnify the liability of _MACA No. 1423 of 2006_ _8_ ## the 1[st] respondent. 12. The petitioner had claimed that he was a retired Selection Grade Instructor of the College of Engineering, Thiruvananthapuram. After his retirement, he was conducting tuition classes and he had an income of Rs.3,000/- per month. The Tribunal, for the want of materials, fixed the notional income of the petitioner at Rs.1,500/- per month. 13. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 14. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decision and considering the fact that the petitioner was a retired Selection Grade Instructor in an Engineering _MACA No. 1423 of 2006_ _9_ college and that he was conducting tuition classes at his residence, I am of the opinion that the petitioner's income can safely be fixed, as claimed in the claim petition, at Rs.3,500/- per month. Hence, I re-fix the petitioner's notional income at Rs.3,500/- per month. ## **Loss of earnings** 15. Going by Exts.A18 to A20 discharge summaries it is that the was proved petitioner hospitalised from 23.12.2001 to 18.02.2002 under two spells spanning 29 days. Therefore, his loss of earnings can well be fixed for two months. In view of the re-fixation of the petitioner's income, I enhance the compensation under the head 'loss of earnings' at Rs.6,000/-. ## **Loss due to disability** 16. It is seen that the Tribunal had fixed the disability of the petitioner at 25% based on Ext.A27 and A28 certificates proved through PW 2 and PW3. _MACA No. 1423 of 2006_ _10_ In the light of the said certificates and the oral testimonies of the above witnesses I concur with the fixation of the disability of petitioner at 25%. ## **Multiplier** 17. It is seen that the Tribunal has fixed the multiplier at '5'. In view of the ratio in **Pranay Sethi** (supra) and considering that the appellant was 60 years of age on the date of accident, the relevant multiplier is '7'. Thus, in view of the re-fixation of the income of the petitioner, his liability at 25% and the multiplier at '7', the petitioner is entitled for compensation under the head 'loss due to disability' at Rs.63,000/- instead of Rs.22,500/- fixed by the Tribunal. ## **Loss of amenities** 18. The petitioner had claimed an amount of Rs.1,00,000/- towards loss of amenities. The Tribunal did not award any amount. Taking note of the injuries _MACA No. 1423 of 2006_ _11_ sustained by the appellant and that he has 25% disability, as evident from Ext.A27 and A28 certificates, I hold that the petitioner is entitled for compensation under the head 'loss of amenities', at Rs.15,000/-. ## **- Bye stander expenses** 19. Undisputedly, the appellant was hospitalised for a period of 29 days, the Tribunal did not award any specific amount under the head bye-stander expenses. Hence, I award an amount of Rs.5,800/towards bye-stander expenses i.e., Rs.200/- per day for a period of 29 days. ## **Other heads of claim** 20. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation and there is no scope for any interference with the said award. 21. On an overall re-appreciation of the _MACA No. 1423 of 2006_ _12_ pleadings, materials on record and the law laid down in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|3,000/-|6,000/-| |2|Transport|2,000/-|2,000/-| |3|Damages to clothing|250|250/-| |4|Bye-stander expenses|nil|5,800/-| |5|Expenses for extra nourishment|1,000/-|1,000/-| |6|Medical expenses|214/-|214/-| |7|Compensation for pain and<br>sufferings|15,000/-|15,000/-| |8|Compensation for loss of<br>amenities|nil|15,000/-| |9|Loss due to disability|22,500/-|63,000/-| |||43,964/-|1,08,264/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.64,300/- (Rupees sixty four thousand and three hundred only) with interest at the rate of 9% per _13_ _MACA No. 1423 of 2006_ annum on the enhanced compensation, from the date of petition till the date of deposit by the 3[rd] respondent, after excluding the period of 656 days i.e., the period of delay in preferring the appeal as directed by this Court on 16.08.2019 in C.M.Appl.No.1537 of 2006, and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall release the enhanced compensation amount to the appellant/petitioner, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 30.06.2021**