P.K. Vijayaraghavan @ Vijayan v. The Managing Director, KSRTC Corporation; M.P. Joy; The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 28TH DAY OF JULY 2017/6TH SRAVANA, 1939** ## **MACA.No. 786 of 2011** ## **-------------------------** ## **AGAINST THE JUDGMENT IN OP(MV).3636/2002 of MACT,THRISSUR DATED 18-11-2006** ## **APPELLANT/PETITIONER:** ## **------------------------** **P.K.VIJAYARAGHAVAN @ VIJAYAN AGED 44 YEARS, S/O.KARAPPAKUTTY, PRAMBIL HOUSE VALAPPAD P.O., THRISSUR DISTRICT** **BY ADV. SRI.M.B.PRAJITH** ## **RESPONDENTS/RESPONDENTS:** **----------------------------** **1. THE MANAGING DIRECTOR,** - **K.S.R.T.C.CORPORATION, THIRUVANANTHAPURAM** **2. M.P.JOY, S/O.POULOSE, MANIKYATH PARAMBIL HOUSE, KONOOR, MURINGOOR KARA KORATTY VILLAGE, THRISSUR DISTRICT** **3. THE NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE, P.B.NO.434, ST.JOSEPH'S PRESS BUILDING, VAZHUTHAKKAD, TRIVANDRUM-14** **R3 BY ADV. SMT.RAJI T.BHASKAR** - **R1 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.786 of 2011 **-----------------------------------------------** Dated this the 28[th] day of July, 2017 ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** ## . This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Thrissur, dated 18.11.2006 in O.P. (MV) No.3636/2002, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 27.4.2002 while he was travelling as a passenger in a KSRTC bus bearing registration No.KL-15/3684 owned and driven by the 1[st] and 2[nd] respondents respectively and insured with the 3[rd] respondent. At the place of accident, the 2[nd] respondent driver lost control of the bus and while swerving the bus in a turning, the left hand of the appellant hit a telephone post which was standing on the road margin and he sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent M.A.C.A.No.786 of 2011 :-2-: driver, claim petition was filed before the Tribunal claiming a total compensation of `2 lakhs under different heads. 2. Before the Tribunal, Exts.A1 to A14 were marked on the side of the appellant/claimant and the doctor who issued Ext.A10 disability certificate was examined as PW1. 3. After considering the materials and evidence on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent owner. Under different heads, the Tribunal awarded a total compensation of `40,950/- and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7% per annum from the date of petition, i.e., from 30.12.2002 till the date of actual payment, with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard arguments. M.A.C.A.No.786 of 2011 :-3-: 6. The sole issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of compensation awarded by the Tribunal under different heads. The accident is of the year 2002 and at the time of the accident, the appellant was aged about 44 years. He claimed a monthly income of `3,500/- as a tailor. However, no reliable materials were placed before the Tribunal in order to prove his monthly income. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally at `2,000/- for the purpose of assessing compensation under different heads. 7. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Apex Court fixed the notional monthly income of a coolie who met with a motor accident in the year 2004 at `4,500/-. In the instant case, the accident is of the year 2002. Considering the said fact, in the light of the above judgment of the Apex Court, we find no reason to disbelieve the claim of the appellant/claimant as to his monthly income. Therefore, we deem it appropriate to refix the monthly income of the appellant/claimant notionally at M.A.C.A.No.786 of 2011 :-4-: ## `3,500/-, as claimed in the claim petition. 8. The injuries sustained by the appellant/claimant, as borne out from Ext.A2 wound certificate, read thus ; “Closed comminuted fracture on middle 3rd of left humerus, fracture lower 1/3[rd] radius left, abrasion 2x2 cm over upper 3[rd] of left forearm.” As a result of the injuries sustained in the accident, he had undergone inpatient treatment for a period of 25 days and the said fact is not seriously disputed by the learned counsel for the 3[rd] respondent insurer. 9. In Ext.A10 disability certificate, PW1 doctor has certified that the appellant/claimant is having wasting of left arm muscles, deltoid biceps. However, the Tribunal noticed that nowhere in other medical records there was anything to show that there is wasting of biceps and the photograph of left arm of the appellant/ claimant would show that there is no such wasting of biceps. During cross examination, PW1 doctor has admitted that the fractures are well united. PW1 has also admitted that the disability given in Ext.A10 is with regard to upper limb alone. It was in the above circumstances that the Tribunal disbelieved the version of PW1. Therefore, the finding of the Tribunal in M.A.C.A.No.786 of 2011 :-5-: discarding Ext.A10 disability certificate warrants no interference in this appeal. 10. The compensation awarded by the Tribunal under different heads reads thus ; |1|Loss of earning|6000| |---|---|---| |2|Expense for transportation|1000| |3|Expense for extra nourishment|500| |4|Damages to clothing|500| |5|Expense for treatment|2950| |6|Expense for bystander|2000| |7|Compensation forpain and suffering|12000| |8|Compensation for discomfiture|8000| |9|Compensation for loss of amenities|8000| ||Total|40950| 11. Towards 'loss of earning', the Tribunal awarded a sum of `6,000/- at the rate of `3,000/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, the 'loss of earning' for a period of 2 months awarded by the Tribunal warrants no interference. Since we have already re-fixed the monthly income of the appellant/claimant notionally at `3,500/-, the compensation awarded under this head is re-worked as `10,500/- (3,500x3), resulting an additional compensation of ` **4,500** /-. M.A.C.A.No.786 of 2011 :-6-: 12. Towards 'transportation expenses', the Tribunal awarded a sum of `1,000/-, which represents just and reasonable compensation under the said head and hence it warrants no interference in this appeal. 13. Towards 'extra nourishment', the Tribunal awarded a sum of `500/- and a further sum of `2,000/- was awarded under the head 'bystander expenses'. Since the accident is of the year 2002, the appellant/claimant is entitled for compensation under the head 'extra nourishment' at the rate of `100/- per day and that under the head 'bystander expenses' at the rate of `150/- per day. Hence, the compensation under the head 'extra nourishment' is re-worked as `2,500/- (100x25), resulting an additional compensation of ` **2,000** /-. Similarly, the compensation under the head 'bystander expenses' is re-worked as `3,750/(150x25), resulting an additional compensation of ` **1,750** /-. 14. Towards 'damage to clothing', the Tribunal awarded a sum of `500/-. Considering the fact that the accident is of the year 2002, we deem it appropriate to re-fix the compensation under this head as `750/-, resulting an additional compensation of ` **250** /-. ## M.A.C.A.No.786 of 2011 :-7-: 15. Towards 'pain and suffering', the Tribunal awarded a sum of `12,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we deem it appropriate to re-fix the compensation under this head as `20,000/-, resulting an additional compensation of ` **8,000** /-. 16. The Tribunal awarded a sum of `8,000/- each under the heads 'compensation for discomfiture' and 'compensation for loss of amenities'. As discernible from the impugned award, the Tribunal awarded the said amount as compensation considering the fact that there is a long scar on the left arm of the appellant/ claimant which has resulted in limitation of movements of left arm. Considering the nature of injuries sustained, the Tribunal has also awarded a sum of `8,000/- under the head 'loss of amenities and enjoyment in life'. The compensation awarded as aforesaid by the Tribunal represents just and reasonable compensation, which warrants no interference in this appeal. In the result, the appellant will be entitled for an additional compensation of ` **16,500** /- (4,500+2,000+1,750+250+8,000) in this appeal, which will carry interest at the rate of 8% per annum M.A.C.A.No.786 of 2011 :-8-: from the date of petition till realisation, excluding the period of delay of 311 days in representing this appeal, which was condoned by the order dated 16.6.2011, subject to the condition that the appellant/claimant will not be entitled to get interest for the period of delay of 311 days, if he is found entitled to get enhanced compensation. Since the insurance coverage of the vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal, within a period of 1 month from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/31.7.17 //True copy// P.A.to Judge