O.M. Basheer vs The Managing Director KSRTC & Raveendran Mattathentavida Ravi

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 ``` ``` MACA NO. 1878 OF 2011 ``` ``` AGAINST THE AWARD DATED 19.10.2010 IN OP(MV)NO.1662/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM. ``` ## `APPELLANT/PETITIONER:` ``` O.M.BASHEER, AGED 52 YEARS S/O.MUHAMMED PILLAI, BLAYIPARAMBIL HOUSE, MANJUMMEL, UDYOGAMANDAL P.O., ELOOR VILLAGE, PARUR TALUK ``` ``` BY ADV SMT.K.G.SAROJINI ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1THE MANAGING DIRECTOR,K.S.R.T.C. K.S.R.T.C.TRIVANDRUM -1 ``` ``` 2RAVEENDRAN MATTATHEENTAVIDA RAVI, S/O.KRISHNAN MATTATHEENTAVIDA HOUSE, NEAR NARIKKUNNUSCHOOL, EDACHERRY VILLAGE, EDACHERRYKARA, VADAKARA TALUK, 673101,KOZHIKODE DIST ``` ``` BY ADVS.SRI..JOY GEORGE, SC, K.S.R.T.C. SRI.P.C.CHACKO(PARATHANAM) SRI.ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1878/2011 -:2:- Dated this the 17[th] day of February,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1662/2004 on the file of the Motor Accidents Claims Tribunal,Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 22.11.2003. It was his case that, on the above said day, while he was pedaling his cycle along the Aluva-Ernakulam road, a bus bearing registration No.KL-15/4291, driven by the second respondent in a negligent manner, hit the cycle of the appellant. The appellant fell down and M.A.C.A.No.1878/2011 -:3:- sustained serious He had a injuries. degloving injury(badly crushed) left leg mid thigh, fracture of the cubic symphysis diastasis and open book pelvic injury. He was treated at the Medical Centre, Ernakulam and at the General Hospital, Ernakulam, for a period 46 days. Thereafter, he had to undergo an amputation of his left leg above the knee at the Medical College Hospital, Kottayam. The appellant was butcher by profession and earning a monthly income of Rs.4,000/-. The bus was owned by the first respondent. Hence, the appellant claimed a compensation of Rs.7,00,000/from the respondents, which claim was limited to Rs.5,00,000/- 3. The second respondent did not contest the proceeding. 4. The first respondent had filed a written statement, contending that the accident occurred due to the negligence of the appellant. The first respondent M.A.C.A.No.1878/2011 -:4:- also disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked Exts.A1 to A10 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, entered into a finding that, as it was noted in Ext.A4 wound certificate that the appellant had the smell of alcohol, he had contributed to the accident to the extent of 25%. Therefore, though the Tribunal found that the appellant was entitled to an amount of Rs.2,36,778.53, deducted 25% from the said amount and directed the respondents 1 and 2 to pay 75% of the above amount with interest and proportionate cost. 7. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner M.A.C.A.No.1878/2011 -:5:- is in appeal. 8. Heard; Smt.K.G.Sarojini, the learned counsel appearing for the appellant/petitioner and Sri. Alex Antony Sebastian P.A.,the learned counsel appearing for the first respondent-owner. 9. The questions that arise for consideration in the appeal are: - (i) whether the finding of contributory negligence is sustainable in law? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No:(i)** 10. The specific case of the appellant was that, while he was pedaling his cycle along the Aluva-Ernakulam road, the offending bus driven by the second respondent in a negligent manner hit him. The Tribunal merely for the reason that in Ext.A4 wound M.A.C.A.No.1878/2011 -:6:- certificate, the Doctor had noted that the appellant had smell of alcohol, arrived at the conclusion that the appellant was guilty for contributory negligence to the extent of 25%. 11. This Court in **Jose vs. United India Insurance Co., Ltd** [2015(4) KLT 706], has categorically held that, attributing contributory negligence against an injured/claimant merely on the noting in the wound certificate that the injured had ‘smell of alcohol’ is unsustainable in law. 12. The Hon'ble Supreme Court in **Jiju Kuruvila** **v. Kunjujamma Mohan** [(2013)9 SCC 166] has also held that no interference can be drawn that a person was in an inebriated state on the basis of the noting in the postmortem certificate. 13. Drawing analogy from the principles laid down in **Jose and Jiju Kuruvila** (supra) and taking note of the fact that other than for the casual noting in M.A.C.A.No.1878/2011 -:7:- Ext.A4 wound certificate, without any corroborative material to prove that the appellant was in an inebriated state, the finding of contributory negligence is sustainable in law. Therefore, I set aside the finding of the Tribunal that the appellant had contributed to the accident to the extent of 25%. Hence, I answer Question No(i) in favour of the appellant and hold that he is entitled to the entire amount fixed by the Tribunal. ## **Question No.(ii):** ## **Income:** 14. The appellant had claimed that he was a butcher by profession and earning a monthly income of Rs.4,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** M.A.C.A.No.1878/2011 -:8:- [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 16. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2003, I re-fix the notional monthly income of the appellant at Rs.4,000/-. ## **Loss of earnings:** 17. The Tribunal found that the appellant was indisposed for a period of five months. I confirm the said finding. 18. In view of the re-fixation of the notional monthly income of the appellant at Rs.4,000/-, I award the appellant an amount of **Rs.20,000/-** under the head ‘loss of earnings’, instead of Rs.15,000/- awarded by the Tribunal. ## **Disability:** 19. The appellant was examined by a Medical M.A.C.A.No.1878/2011 -:9:- Board attached to the District Hospital, Ernakulam. The Medical Board as per Ext.A10 disability certificate, found that the appellant had a crushed injury of his left lower limb, cubic symphysis diastasis and amputation above the knee of his left leg. Accordingly, the Medical Board fixed the permanent disability of the appellant at 40%. On the basis of Ext.A10, the Tribunal fixed the permanent disability of the appellant at 40%. 20. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that what needs to be looked into in an injury claim, is the ‘functional disability’ of the injured/claimant. 21. In the instant case, the appellant was a butcher by profession. He has lost his left leg in the accident. In the said factual matrix, following the principles in Part II of Schedule I of the Workmen M.A.C.A.No.1878/2011 -:10:- Compensation Act, 1923, I fix the ‘functional disability’ of the appellant at 50%. 22. Going by the principles laid down by the Hon’ble Supreme Court in **V. Mekala v. M. Malathi and another** [( **2014** ) **11 SCC 178** ] and **Pappu Deo Yadav v. Naresh Kumar and Ors.** [AIR 2020 SC 4424], I award the appellant ‘future prospects’ at 10%, since the injuries are serious in nature and has impaired the appellant’s avocation. ## **Multiplier:** 23. The appellant was aged 52 years at the time of the accident. In the light of the law laid down in **Sarla Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier to be adopted is '11'. ## **Loss due to disability:** 24. Taking into account the above-mentioned factors i.e., the notional income of the appellant at M.A.C.A.No.1878/2011 -:11:- Rs.4,000/-, his functional disability at 50%, ‘future prospects’ at 10% and the multiplier at '11', I award him an amount of **Rs.2,90,400/-** , for 'loss due to disability', instead of Rs.1,85,400/- awarded by the Tribunal. ## **Extra Nourishment:** 25. The appellant was treated as an inpatient for a period of 46 days. The Tribunal has awarded only an amount of Rs.1,000/- under the head ‘extra nourishment’. I find the award amount to be too low. Therefore, I award him an amount of Rs.75/- per day for a period of 46 days, which works out to **Rs.3,450/-** . ## **Pain and sufferings and loss of amenities:** 26. The Tribunal has awarded the appellant an amount of Rs.25,000/- under the head ‘pain and sufferings’ and an amount of Rs.20,000/- under the head ‘loss of amenities’. I find the said amounts also to be on the lower side. M.A.C.A.No.1878/2011 -:12:- 27. On a consideration of the fact that the appellant was treated as an inpatient for a period of 46 days, that he was indisposed for a period of five months and that he has suffered a functional disability of 50%, particularly the amputation of his leg, I award him a further amount of **Rs.25,000/-** under the head ‘pain and sufferings’ and a further amount of **Rs.30,000/-** under the head ‘loss of amenities’. 28. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 29. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. M.A.C.A.No.1878/2011 -:13:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|15,000|20,000| |2|Transportation<br>expenses|1,000|1,000| |3|Damage to<br>clothing|400|400| |4|Extra nourishment|1,000|3,450| |5|Bystander<br>expenses|6,000|6,000| |6|Medical expenses|9,978.53|9,978.53| |7|Loss of amenities|20,000|50,000| |8|Pain and sufferings|25,000|50,000| |9|Loss due to<br>disability|1,58,400|2,90,400| ||**TOTAL**|**2,36,778.53**<br>[Rounded<br>of<br>to<br>Rs.2,36,779/-<br>minus<br>59,194/-<br>(i.e., 25% contributory<br>negligence)]<br>= 1,77,585/-|**4,31,228**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.1,94,449/-** and also awarding the appellant the amount of Rs.59,194/-(i.e., the 25% of the amount that M.A.C.A.No.1878/2011 -:14:- was deducted towards contributory negligence), totaling to an amount of **Rs.2,53,644/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.15,000/-. The first respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/17.02.22 //True copy/ P.A.To Judge