Nazar v. Sagy C. (Deleted) and The General Manager KSRTC

1 MACA No.1902 of 2007 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943** **MACA NO. 1902 OF 2007** **AGAINST THE ORDER/JUDGMENT IN OPMV 2/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD** ## **APPELLANT/S:** NAZAR, 32 YEARS, S/O.MOIDEEN MANAKKATTU HOUSE, P.O.NELLIPUZHA,, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV SRI.ABRAHAM MATHEW (VETTOOR) ## **RESPONDENT/S:** 1 SAGY C.(DELETED) S/O.E.M.CHATHU, EDAPPALMEETHAL HOUSE,, MANANTHAVADY P.O., (DRIVER OF THE KSRTC BUS, NO.KL-15-4548,(TP 389) DL.NO.670/81)(R1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DTD 16/12/19 IN IA NO.1/19) 2 THE GENERAL MANAGER KSRTC, THIRUVANANTHAPURAM. FOR R2 - SRI.P.C.CHACKO, **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1902 of 2007 ## **C.S.DIAS, J.** ## **====================== MACA No.1902 of 2007 ====================== Dated this the 29[th] day of June, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) 2/2003 on the file of the Motor Accidents Claims Tribunal, Kalpetta, Wayanad. The respondents in the appeal were the respondents in the claim petition. This Court by order dated 16.12.2019 in IA 1/2019 had deleted the first respondent from the party array. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The concise case of the petitioner in the claim petition, relevant for determination of the appeal, is that on 17.11.2002 while the petitioner was travelling on a motor cycle bearing registration No.KL-12B/0609 from Tholpetty side to Mananthawady side, while he reached Begoor, a 3 MACA No.1902 of 2007 bus bearing registration No.KL-15/4548 (offending vehicle) which was coming from the Mananthawady side, driven by the first respondent in a rash and negligent manner, hit the motor cycle of the petitioner. As a result of the accident, the petitioner sustained serious injuries including subarachnoid hemorrhage, cerebellar infarct and four fractures. The offending vehicle was owned by the second respondent. The petitioner was a Hill Produce Merchant and getting an income of Rs.10,000/- per month. The petitioner contended that the respondents 1 and 2 were jointly and severally liable to pay compensation to him, which he quantified at Rs.5,50,000/- but limited to Rs.4,00,000/-. 3. The first and second respondents filed a joint written statement, inter alia, contending that the petitioner was travelling as a pillion rider on a motor cycle, which was ridden in a rash and negligent manner. The claim petition was bad for non-joinder of necessary parties. 4 MACA No.1902 of 2007 4. The petitioner was examined as PW1 and Exts A1 to A14 were marked through him. 5. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the petitioner to realise an amount of Rs.1,17,180/- with interest at the rate of 6% per annum from the date of petition till the date of realization along with proportionate costs. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the second respondent. 8. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 9. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay** 5 MACA No.1902 of 2007 **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. 10. Ext A7 charge-sheet filed by the Police after investigation substantiates that the accident occurred solely on account of the negligence of the first respondent who drove the vehicle in a rash manner. offending Admittedly, the second respondent is the owner of the offending vehicle. Therefore, the second respondent is vicariously liable to pay the compensation to the petitioner. 11. The petitioner had claimed that he was a Hill Produce Merchant. He produced Ext A11 assessment order issued by the Sales Tax Officer, Kothamangalam to prove 6 ## MACA No.1902 of 2007 that he was a Hill Produce Merchant and that he had a turnover of 48,90,339 in the financial year 2001-2002. However, the Tribunal disbelieved the document and fixed the petitioner's notional income at Rs.2,500/- per month. 12. 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. 13. Considering the fact that the appellant was 32 years of age and he had produced Ext A11 to show that he was a Hill Produce Merchant and that the accident occurred in the year 2002, I am of the considered opinion that the petitioner's notional income can safely be fixed at Rs.3,500/- per month. Hence, I fix the petitioner's notional income at Rs.3,500/- per month. 14. The petitioner had produced Ext A8, Ext A13 and A14 certificates to establish that he had a disability of 30%. 7 MACA No.1902 of 2007 However, the petitioner did not examine the Doctors who issued the said certificates. 15. The Hon'ble Supreme Court in **Raj Kumar vs. Ajaykumar [2011 (1) KLT 620(SC)]** has held that the mere production of a disability certificate is insufficient to fix the disability. The disability certificate can be accepted on record, only if the Doctor who issued the certificate is examined. Otherwise, the injured would be at liberty to get his disability assessed by a duly constituted Medical Board. 16. Unfortunately, the petitioner did not examine the Doctors who issued the said certificates or avail the benefit of getting himself examined by a Medical Board. Nevertheless, the Tribunal fixed the disability of the petitioner at 5% based on the available materials. I do not find any reason to differ from the assessment made by the Tribunal, who had personally seen the petitioner in person. Therefore, I confirm the disability of the petitioner at 5%. 8 MACA No.1902 of 2007 ## **Loss of earnings** 17. It is seen that the petitioner had sustained serious injuries as evident from Ext A3 discharge summary. He had undergone hospitalization for 20 days in the first spell between 18.11.2002 to 3.12.2002 and, thereafter, he had to remove the implants for which he underwent hospitalization for three days, i.e., from 30.6.2004 to 3.7.2004. 18. Going by the materials on record, especially Exts A8, A13 and A14 certificates, I am of the opinion that the petitioner was incapacitated for a period of 12 months. Therefore, taking into consideration the notional income of the petitioner and that he was incapacitated for a period of 12 months, I fix his loss of earnings at Rs.42,000/-. ## **Transportation** 19. The petitioner had claimed that he hails from Perumbavoor and was being treated at Baby Memorial 9 MACA No.1902 of 2007 Hospital, Kozhikode, where he underwent his first surgery. He had to travel between Perumbavoor and Kozhikode for the purpose of his treatment. Although he had produced Exts A10 series of transportation bills, the Tribunal only awarded an amount of Rs.1,000/-, which according to me is on the lower side. Accepting Ext A10 series, I hold that a reasonable amount of Rs.7,000/- has to be awarded towards transportation expenses. ## **Bystander expenses** 20. Admittedly, the petitioner underwent hospitalization for a period of 23 days. However, the Tribunal only awarded an amount of Rs.400/- towards bystander expenses. Fixing the bystander expenses at Rs.200/- per day for a period of 23 days, I refix the bystander expenses at Rs.4,600/-. ## **Pain and sufferings** 21. The petitioner had claimed compensation under the head pain and sufferings at Rs.50,000/-. The Tribunal 10 MACA No.1902 of 2007 awarded only an amount of Rs.5,000/-, which according to me is meagre. Going by Ext A3 discharge summary and Exts A13 and A14 certificates, I find that the petitioner had sustained serious injuries and was hospitalized for a period of 23 days and underwent treatment which spanned nearly two years. In such circumstances, I hold an amount of Rs.20,000/- would be a reasonable amount to be awarded under the head pain and sufferings. ## **Loss of amenities** 22. Similarly, the Tribunal did not award any amount under the head loss of amenities, which is wrong. Hence, I fix Rs.10,000/- as compensation under the head loss of amenities. ## **Loss due to disability** 23. In view of the refixation of the notional income of the petitioner, and the relevant multiplier being 16, and the disability being 5%, I fix the compensation of the petitioner for loss due to disability at Rs.33,600/- instead of 11 MACA No.1902 of 2007 Rs.25,500/-. ## **Other heads of claim** 24. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited precedents, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|2,500/-|42,000/-| |2|Transportation expenses|1,000/-|7,000/-| |3|Damage to clothing|250/-|250/-| |4|Bystander expenses|400/-|4,600/-| |5|Extra nourishment|500/-|500/-| |6|Medical expenses|82,030/-|82,030/-| |7|Pain and sufferings|5,000/-|20,000/-| |8|Loss of amenities|nil|10,000/-| |9|Loss due to disability|25,500/-|33,600/-| ||Total|1,17,180/-|1,99,980/-| 12 MACA No.1902 of 2007 In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.82,800/- (Rupees Eighty Two Thousand Eight Hundred only) with interest at the rate of 6% per annum from the date of claim petition till the date of realisation on the enhanced compensation with proportionate costs. The second respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal together 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 to the appellant, in accordance with law. **SD/-** **C.S.DIAS** SKS/29.6.2021 **JUDGE**