M.V. Babu v. The Managing Director, Kerala State Road Transport Corporation and Chinnamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944** **MACA NO. 847 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 2166/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **THRISSUR** ## **APPELLANT/PETITIONER:** **M.V.BABU** **S/O. VASU, RESIDING AT MADAMBIKATTIL HOUSE, P.O.POOTHOLE, THRISSUR680004.** **BY ADV SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** - **1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM-695001.** - **2 CHINNAMMA** - **W/O. LATE IPE, RESIDING AT KANJIRATHINGAL HOUSE, KOTTAPPADI VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM-686691.** **BY ADVS.** **SMT.BIMALA BABY, SC, KSRTC ALEX ANTONY SEBASTIAN P.A.** ## **OTHER PRESENT:** **SRI. ALEX ANTONY SEBASTIAN P.A - R1** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.847/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.2166/2006 on the file of Motor Accidents Claims Tribunal, Thrissur (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.4,67,500/-, which was limited to Rs.3,50,000/- out of injuries sustained by the appellant in a motor accident occurred on 19.04.2006 at about 6.45 p.m while the appellant was driving a lorry bearing Reg.No.KL-8-F-9675 on Perumbilavu – Changarmkulam public road, at Kallumpuram near Kadavallur, due to hit with a K.S.R.T.C Bus bearing Reg.No.KL-15-3797 driven by the deceased Sunny. 2. It is alleged that the accident happened due to rash and negligent driving of the K.S.R.T.C. bus by deceased Sunny. First respondent is the owner of the K.S.R.T.C bus. Before the Tribunal, father of deceased Sunny arrayed as the second respondent. After the death of the 2nd respondent-father, MACA No.847/2013 3 mother of the deceased driver was impleaded as the third respondent. 3. Before the Tribunal, first respondent, the Managing Director of K.S.R.T.C filed written statement admitting that the deceased Sunny was driving the bus but denied the negligence attributed against the deceased. 4. PW1, the Medical Officer, was examined and Exts.A1 to A11 marked from the side of the appellant. There was no evidence from the side of respondents. 5. The Tribunal on evaluating the evidence and facts and circumstances found that the deceased, driver of the K.S.R.T.C bus, was responsible for the accident. First respondent, the Managing Director of the K.S.R.T.C. is held vicariously liable to compensate the appellant. A total compensation of Rs.1,60,200/- was awarded, which was allowed to realise with interest at the rate of 8% per annum from the date of petition till realisation. MACA No.847/2013 4 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellant is before this Court in appeal for various grounds stated in the memorandum of appeal. 7. In appeal, first respondent appeared through Adv.Sri.Alex Antony Sebastian P.A., learned Standing Counsel for the KS.R.T.C. Service of notice as against the second respondent/third respondent is dispensed with. 8. Heard the learned counsel for the appellant as well as the learned Standing counsel for the K.S.R.T.C. Lower court records were called for and perused. 9. According to the learned counsel for the appellant, appellant is a heavy vehicle driver and he was driving the lorry at the time of accident. He claimed a monthly income of Rs.6,000/-. But the Tribunal taken the income as Rs.3,500/-, which according to him is very low. He would also contend that though permanent disability has been assessed at 15.61% by PW1 doctor, the Tribunal taken only 5% and that has caused prejudice to him. Further he would contend that compensation MACA No.847/2013 5 awarded towards pain and suffering as well as towards loss of amenities are very low and hence seeks for enhancement of compensation on the above heads. 10. Learned Standing Counsel on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no enhancement is required at the instance of this Court. 11. First aspect is with regard to the monthly income of the appellant. He claimed Rs.6,000/- as the income. To prove that he is holding licence to drive heavy vehicle, appellant produced Ext.A10 copy of the driving licence which would prove that he is holding LMV, HGMV, HPMV AND M/C with gr and the date of first issue was on 23.01.1981 and Badge Number is also noted. The accident in this case was on 19.04.2006. So Ext.A10 would prove that he was holding heavy vehicle driving licence as on the date of accident. So monthly income of Rs.6,000/- claimed by the appellant can very well be accepted. 12. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 6 MACA No.847/2013 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 13. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary MACA No.847/2013 7 damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. 14. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been injured, comprising : - Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 15. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and MACA No.847/2013 8 loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 16. Ext.A5 is the wound certificate. Ext.A6 series are the discharge summaries. Ext.A5 would show that he had sustained lacerated wound: right temporal area 3x1x1 c.m, right parietal area 5x1x1 c.m, chin 2x1x1 c.m and chin right side 2x1x1 c.m. The investigation result is fracture 5[th] metatarsal right and fracture both bone left leg and fracture radial neck right side. Ext.A6 discharge summary issued from Westfort Hospital, Thrissur would prove inpatient treatment from 19.04.2006 to 03.05.2006. Ext.A6(a) is the another discharge summary issued on 19.04.2006 to 03.05.2006. Ext.A6 is also for the same period. Ext.A7 is the disability certificate issued by PW1, the Doctor attached to Aswini Hospital Pvt. Ltd., Thrissur, who is a Consultant Orthopaedic & Arthroscopic Surgeon. He certified permanent wholebody disability at 15.61%. The Tribunal adopted disability at 15%. Since the doctor was examined as MACA No.847/2013 9 PW1 and he deposed in terms with the certificate issued by him and there was no cross examination of the doctor also, 15.61% whole body disability assessed by the doctor, can be accepted. 17. According to the learned counsel, the appellant had sustained both bone fracture of left leg as well as fracture of neck of radius and he had undergone 14 days inpatient treatment. So loss of earnings for six months can reasonably be granted taking into account the fact that he is a heavy vehicle driver. That will come to Rs.36,000/- [6,000x6]. Deducting the amount already awarded, balance would be Rs.25,500/[36,000-10,500]. The appellant is aged 47 years. It has come out that he is a heavy vehicle driver and accident occurred while he was driving the lorry. As found afore permanent disability as assessed by the doctor can be adopted for fixing the compensation for future loss of earning power. The appellant was aged 48 years at the time of accident. As per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] as approved by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 MACA No.847/2013 10 (SC)] the suitable multiplier would be '13'. So compensation towards permanent disability would be Rs.1,46,109.6 [6,000x12x13x15.61/100]. Deducting the amount already awarded, balance would be Rs.64,209.6 [1,46,109.6-81,900]. Towards pain and suffering, according to the learned counsel, since the appellant had sustained fracture both bone left leg and fracture radial neck right side, Rs.15,000/- awarded by the Tribunal is very low. So it is re-fixed as Rs.20,000/-. Deducting the amount already awarded, balance would be Rs.5,000/[20,000-15,000]. Being a driver, the fracture sustained to both bones of left leg as well as fracture to right humerus would cause inconvenience and discomfort in discharging his work as a driver and hence towards loss of amenities an amount of Rs.15,000/- can be awarded instead of Rs.10,000/- awarded by the Tribunal. So the balance would be Rs.5,000/- . [15,00010,000]. 18. In the result, the appellant is allowed to realise enhanced compensation of Rs.99,709.6/- [25,500+64,209.6+ 5,000+5,000], rounded off to Rs.99,700/- (Rupees ninety nine MACA No.847/2013 11 thousand seven hundred only) which will carry interest at the rate of 6.5% per annum from the date of petition till realisation. First respondent, Managing Director of K.S.R.T.C shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. Appellant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA JUDGE** shg