P.J. Thomas Pallithottathil v. The Managing Director, K.S.R.T.C. and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 28TH DAY OF NOVEMBER 2014/7TH AGRAHAYANA, 1936** **MACA.No. 1467 of 2009 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 3360/2002 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM DATED 05-02-2009** **APPELLANT(S)/PETITIONER: -------------------------** **P.J.THOMAS PALLITHOTTATHIL VEEDU, NEAR EDAPPALLY CHURCH EDAPPALLY NORTH P.O.** **BY ADVS.SRI.K.JANARDHANAN SRI.MANURAJ. K.J** **RESPONDENTS/RESPONDENTS:** **---------------------------** **1. THE MANAGING DIRECTOR K.S.R.T.C., TRANSPORT BHAVAN, FORT THIRUVANANTHAPURAM.** *** 2. T.K.PRASAD, S/O. KUMARAN, THARAVASSERIYIL THENA VEETTIL, SOUTH OF KULASEKHARAMANGALAM, GOVT. SCHOOL KULASEKHARAMANGALAM. (DELETED)** **3. NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, P.B.NO.434, ST.JOSEPH'S PRESS BUILDING, VAZHUTHAKKAD, TRIVANDRUM-14.** ***(R2 IS DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF THE APPELLANT VIDE ORDER DATED 11.6.2014 IN I.A. 1495/14 IN M.A.C.A. 1467/09).** **R1 BY ADV. SRI.JOY GEORGE, SC, K.S.R.T.C. R3 BY ADV. SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD** **ON 28-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.A.C.A. No.1467 of 2009 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 28[th] day of November 2014 ## **JUDGMENT** ## **Ramachandran Nair, J.,** This appeal is filed by the claimant who had sustained serious injuries in an accident which occurred on 26.9.2001 at about 6.45p.m. He was riding a motor cycle bearing Registration No. KL 7/AE 9921 south to north through Poothotta-Thripoonithura Road. When he reached near Udayamperoor, a K.S.R.T.C. Bus KL 15/3623(75-515) which was coming from north to south overtook another vehicle, hit the motor cycle and the appellant sustained severe injuries. 2.The Tribunal has granted an amount of Rs.6,02,500/as compensation. 15% of contributory negligence has also been found. 3. Learned counsel for the appellant submitted that the finding regarding the contributory negligence is not supportable. It is submitted that the motor cycle was on the correct side and there was no evidence on the part of the M.A.C.A. No.1467 of 2009 :2: driver or owner of the bus to establish that there was contributory negligence. What is found by the Tribunal is only that, there was two pillion riders resulting in overloading and therefore, 15% of contributory negligence can be attributed. 4. It is also submitted that the petitioner had been in continuous treatment spanning over to different years. He was treated as inpatient for a period of 163 days in 5 different hospitals including M.N.Orthopedics Hospital, Madras. Even after the disposal of the claim petition, he had continued his treatment and learned counsel for the appellant relied upon Annexure A1 to A4 treatment certificates produced in this appeal along with I.A.No.1496/14. Ext.A5 disability certificate issued by by the Medical Board and series of bills produced as Annexure A6 series are produced to show that he continued his treatment. 5. The Tribunal has accepted 20% disability. It is submitted that the compensation awarded towards permanent disability, pain and sufferings, attendants expenses, future treatment expenses and loss of income, for discomforts & inconvenience, disfiguaration etc. are totally inadequate. 6. As far as the issue of contributory negligence is M.A.C.A. No.1467 of 2009 :3: concerned, we are of the considered view that, the observation by the Tribunal that the appellant was also negligent cannot be accepted. Even going by the findings of the Tribunal, the vehicle driven by the appellant was on the correct side. The K.S.R.T.C. Bus which was coming from the opposite direction was overtaking a vehicle carelessly and thus hit against the motor cycle. Only on the finding that, two pillion riders were on the motor cycle, the Tribunal observed that,there is overloading which caused contributory negligence. 7.The said legal issue is directly covered in favour of the petitioner by a decision of a Division Bench of this Court reported in _**Binoj Antony v. New India Assurance Company Ltd. (2014 (1)KLT 393)**_ . Therein the Division bench was of the view that, “the mere fact that a motor cycle was carrying two pillion riders cannot _ipso facto_ give rise to an inference of contributory negligence unless it is positively proved that such carrying of two pillion riders actually contributed to the accident”. As far the present case is concerned, it has not been established that merely because two pillion riders were carried, the accident occurred. Therefore, negligence on the part of the appellant herein has M.A.C.A. No.1467 of 2009 :4: not been established at all. In that view of the matter, we vacate the said at finding. 8. The appellant sustained the following injuries. - (i). Lacerated wound ® leg (R) knee, forehead. - (ii)Open fracture ® femur L/3. (iii). Comminuted fracture both bones ® leg M/3. 9. Initially he was treated as inpatient from 26.9.2001 to 9.11.2001. During this period he had to undergo various surgical procedures in R.C.M. Hospital, Thripunithura. Wound debridement, interlocking nailing of right femur and nailing of tibia were done. Thereafter, it was stated that screw fixed was broken. That necessitated hospitalisation in two other private hospitals in Ernakulam for further treatment. He was treated in the Specialist Hospital, Ernakum for a period from 3.10.2002 to 7.10.2002 which is supported by Ext.A8 document. During that period, bone grafting was done. For removing nailing etc, he was again hospitalised. For the period from 22.5.2003 to 9.6.2003, he was admitted to Medical Trust Hospital, Ernakulam and Ext.A9 is the medical certificate to prove the same. Therein open reduction and internal fixation, bone grafting of right tibia application of BK slab, removal of M.A.C.A. No.1467 of 2009 :5: broken screw etc. was done. Repeated dressing were also done because of the collection of pus and discharge from the wounds. 10. The appellant was later admitted in M.A.J.Hospital, Edappally on 3.10.2005 which is supported by Ext.A12 and he underwent surgery in that hospital also. He remained as inpatient there till 10.11.2005. 11.The details of treatment in Ext.A13 shows that, application of external fixator and bone grafting were repeated, tendon bearing cast was applied, weight bearing cast was supplied, collection was removed, re-debridement and curettage were done, muscle pedicle graft was also done and external fixator was reapplied. Various other procedures were also done which is clear from paragraph 14 of the judgment. Finally, ilizarov limb lengthening apparatus was fixed to increase the length of the limb. Upper tibial osteotomy and lengthening were done. It is observed that after removing ilizarov apparatus knee POP was applied and the same was removed after six weeks and instead walking brace was applied. The examination conducted on 23.5.2008 showed that the patient was walking on brace without any pain. Wounds M.A.C.A. No.1467 of 2009 :6: were found healed. During this period, he was treated in the M.N.Orthopedic Hospital in Madras also. Exts.A17& A18 are the inpatient and outpatient summary. Therein, implant removal of tibia was done and he was remaining as inpatient for 12 days. Ext.A17 would further show that intra-medollary interlocking nailing with bone grafting was also done from this hospital. He was treated there as outpatient from 8.10.2004 to 3.12.2004 intermittently. 12. Paragraph 16 of the judgment would show that, he was treated as inpatient for a period of 163 days. It is also evident that he had to remain as out patient for a long time. On the aspect of assessment of compensation, the monthly income claimed by the appellant is Rs. 15,000/-. He was conducting a service station at By-pass Edappally. Exts.A20 & A21 are the evidence produced in support of the same. Ext.A20 is the copy of D&O license issued by Cochin Corporation for the operation of 9 HP motor for service station during the year 1992-1993. He was examined as PW1 and Ext. A21 is the copy of the pan card. According to the finding of the Tribunal, except these documents, no other documentary evidence is available to show the average income. The Tribunal therefore, assessed M.A.C.A. No.1467 of 2009 :7: the annual income of the petitioner at Rs. 36,000/-. 13. In the light of the fact that, he was conducting a service station, it would have been proper for the Tribunal, to fix monthly income at a higher amount. Learned Counsel for the Insurance Company submitted that there is no evidence to show that he had to stop the business and therefore obviously he was conducting it and he might have been earning income also. Therefore, learned counsel submitted that claim of Rs. 15,000/- per month cannot be accepted. But we are of the view that, a reasonable sum can be fixed since the petitioner was doing a business of his own. Accordingly we fix it as Rs. 5,000/- per month. 14. The Tribunal has awarded compensation in the following manner: |Sl.<br>No.|Heads|Amount| |---|---|---| |1|Transportation|3000| |2|Extra nourishment|5000| |3|Damage to clothing|1000| |4|<br>Medical expenses|3,64,968| |5|Expenses for bystander (Rs. 50/-per day)|18000| |6|Future treatment expenses|15000| |7|Loss of income|36000| |8|Pain and suffering|40000| |9|For discomforts and inconvenience and<br>reduction in amenities|20000| |10|Dis-figuration|10000| |11|Permanent disability|1,08,000| ||Total|6,02,500| |||| M.A.C.A. No.1467 of 2009 :8: 15. According to us, in the light of the period of inpatient treatment as 163 days, proper amounts ought to have been granted rather than granting only Rs. 50/- per day for bystander. It is only reasonable to take it as Rs.250/- per day. Therefore, we award a total amount of Rs.32,600/- for bystander expenses. Since we are adopting Rs.5,000/- per month as income, for the partial loss of earning we award an amount of Rs.60,000/- for one year. As far as transportation expenses are concerned, we find that he was treated in five different hospitals including one at Madras, and hence an amount of Rs.15,000/- granted towards transportation expenses. As far as extra nourishment is concerned, in the light of the continuous treatment, we grant an amount of Rs. 7,500/-. In regard to medical expenses concerned, the appellants have produced various bills before this Court. But learned counsel for the Insurance Company objected the acceptance of the same, since the respondent will not be getting a chance to cross-examine the appellant. We accept the amount Rs.3,64,968/- fixed by the Tribunal below as the amount towards medical expenses already incurred. Towards future medical expenses, Rs.15,000/- has been provided by the M.A.C.A. No.1467 of 2009 :9: Tribunal. The finding by the Tribunal shows that he had been under continued treatment for a span of four years and even at the time of final discharge, and even subsequently when he was available before the Tribunal, it is seen from paragraph 22 that the fractured leg even then gives disfigured and discolored look. The portion below knee was found flabby, skilled, irregular and discolored. We therefore, fix an amount of Rs. 35,000/-towards future medical expenses. As far as pain and sufferings are concerned, it is seen that hospitalisation in different hospitals which are supported by documents justifies a higher amount including the inpatient treatment he has undertaken. He was treated as outpatient also during this seven years period. Therefore, we grant an amount of Rs. 75,000/- was towards pain and suffering. Towards loss of enjoyment of life, we grant an amount of Rs. 30,000/-. For disfigurement also we award Rs. 15,000/-. Apart from the same, the other factor is permanent disability. Therein the Tribunal has granted Rs. 1,08,000/-. Going by the income assessed at the rate of Rs.5,000/- per month, an amount of Rs.1,80,000/- is granted towards permanent disability. Then the total compensation will be Rs. 8,15,068/- rounded to M.A.C.A. No.1467 of 2009 :10: ## Rs. 8,15,000/-. |Sl.<br>No.|Heads|Amount in Rs.| |---|---|---| |1|Transportation|15000| |2|Extra nourishment|7500| |3|Damage to clothing|1000| |4|Medical expenses|3,64,968| |5|Expenses for bystander (Rs. 250/-per day)|32600| |6|Future treatment expenses|35000| |7|Loss of income|60000| |8|Pain and suffering|75000| |9|<br>For discomforts and inconvenience and<br>reduction in amenities|20000| |10|Dis-figuration|15000| |11|Permanent disability|1,80,000| ||Loss of enjoyment in life|30000| ||<br>Total|815068| (Rupees Egith lakh fifteen thousand only) 16. The amount will carry interest at the rate of 9% from the date of petition. The Insurance Company is directed to deposit the amount, less the amount already deposited, within a period of three months. Accordingly, the appeal is allowed as above. No cost. Sd/- ## **T.R.RAMACHANDRAN NAIR** **(JUDGE)** Sd/- **P.V.ASHA (JUDGE)** AL/- True copy P.A to Judge