Purushothaman S/o Keeran and others (Legal representatives of the original appellant) v. Vasudevan S/o Krishnan Kutty and Managing Director, K.S.R.T.C. (MACA No. 710 of 2007)

1 MACA No.710 of 2007 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943** ## **MACA NO. 710 OF 2007** **AGAINST THE ORDER/JUDGMENT IN OPMV 625/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NORTH PARAVUR, ERNAKULAM APPELLANT/S:** 1 PURUSHOTHAMAN,S/O.KEERAN,CHERUVODATHU HOUSE,PANCHAYATHUPADY,, EZHIKKARA ROAD, EZHIKKARA VILLAGE. 2 RESMI C.P,AGED 41 YEARS,D/O LATE PURUSHOTHAMAN, CHERUVODATHU HOUSE, EZHIKKARA P.O., PARAVOOR, ERNAKULAM 3 MANJU C.P.,AGED 41 YEARS,D/O LATE PURUSHOTHAMAN, CHERUVODATHU HOUSE, EZHIKKARA P.O., PARAVOOR, ERNAKULAM 4 SWAPNA C.P.,AGED 41 YEARS,D/O LATE PURUSHOTHAMAN, CHERUVODATHU HOUSE, EZHIKKARA P.O., PARAVOOR, ERNAKULAM (IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 IN THE APPEAL AS PER ORDER DATED 15.9.2021 IN IA 1/2021) BY ADV SRI.S.RAJEEV ## **RESPONDENT/S:** 1 VASUDEVAN,S/O.KRISHNAN KUTTY,KOVATHU HOUSE, NEAR S.M.SCHOOL,, POOKKODU KARA, VARAKARA, AMBALLOOR VILLAGE,, THRISSUR DISTRICT, (DRIVER KSRTC KANIYAPURAM, DEPOT). 2 MANAGING DIRECTOR K.S.R.T.C. THIRUVANANTHAPURAM. BY ADVS. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. SRI.P.C.CHACKO(PARATHANAM) SRI.JOY GEORGE, SC, K.S.R.T.C. ALEX ANTONY SEBASTIAN P.A. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.710 of 2007 ## **C.S.DIAS, J.** ## **====================== MACA No.710 of 2007 ====================== Dated this the 10[th] day of November, 2021.** ## **JUDGMENT** The original appellant was the petitioner in OP(MV) 625/2002 on the file of the Motor Accidents Claims Tribunal, North Paravur. During the pendency of the appeal, the original appellant died and his legal representatives have been impleaded as additional appellants 2 to 4. The respondents in the appeal were the respondents before the Tribunal. 2. The original appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 11.9.2001. It was the original appellant's case that, on the aforesaid day, while he was travelling in an auto-rickshaw bearing 3 MACA No.710 of 2007 registration No.KL-01/V 451 from Panavila to Thambanoor, when he reached the Panavila Model School Junction, a K.S.R.T.C Bus bearing registration No.KL15/2585 (Bus), driven by the first respondent in a rash and negligent manner, hit the auto-rickshaw. The original appellant, his wife and daughter got injured in the accident. The original appellant was treated as an inpatient at the Medical College Hospital, Thiruvananathapuram for a period of six days, and, thereafter, at the Amritha Hospital, Ernakulam. He was advised to take bed rest for a period of six months. The original appellant was 63 years of age and was working as a Cashier in a private concern. He was earning a monthly income of Rs.5,000/-. The original appellant had sustained serious injuries. The Bus was owned by the second respondent. Hence, the original appellant claimed a total compensation of Rs.2,30,000/- from the respondents, which was limited to Rs.1,50,000/-. 4 MACA No.710 of 2007 3. The original appellant's wife and daughter also filed OP(MV) Nos 624 and 626 of 2002, respectively, before the same Tribunal seeking compensation on account of the injuries sustained in the same accident. 4. The respondents did not contest the proceeding and were set ex parte. 5. The Tribunal consolidated and jointly tried the three claim petitions. 6. The original appellant and other two petitioners marked Exts A1 to A9 series in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, by permitting the original appellant to realise from the second respondent an amount of Rs.31,250/- with interest @ 7% per annum from the date of claim petition till the date of realisation and proportionate costs. 8. Dissatisfied with the quantum of compensation 5 MACA No.710 of 2007 awarded by the Tribunal, the petitioner is in the appeal. 9. Heard: Sri.S.Rajeev, the learned Counsel appearing for the appellant and Sri.Alex Antony, the learned counsel appearing for the second respondent – insurer. 10. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A1 charge-sheet filed by the Police in crime No.1665/2001 substantiates that the accident happened due to the negligence of the first respondent. Admittedly, the second respondent was the owner of the Bus. Therefore, the second respondent is vicariously liable to pay the compensation amount. ## **Notional Income** 12. The original appellant had averred in the claim petition that he was 63 years of age and was working as a 6 MACA No.710 of 2007 Cashier in a private concern and he was earning a monthly income of Rs.5,000/-. The original appellant did not produce any material to substantiate his income. The Tribunal fixed the notional monthly income of the original appellant at Rs.1,500/-. 13. 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. 14. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2001, I hold that the original appellant's notional monthly income can safely be fixed at Rs.3,000/-. ## **Loss of earnings** 15. It is proved as per Ext A3 wound certificate and Ext A5 medical certificate that the original appellant had 7 MACA No.710 of 2007 sustained a fracture of the lower end of his right radious and fracture of the left patella, which was managed with an elbow slab and knee cast at the Medical College Hospital, Thiruvananthapuram. It is also on record that the original appellant was treated as an inpatient at the said Hospital for a period of six days. 16. Taking into account the aforementioned injuries and the fact that the original appellant was 63 years of age and was working as a Cashier, I hold that he was indisposed for a period of six months. 17. In view of the refixation of the notional monthly income of the original appellant at Rs.3,000/-, I refix the loss of earnings at Rs.18,000/- instead of Rs.3,000/awarded by the Tribunal, i.e., an enhancement of **Rs.15,000/-.** ## **Compensation for pain and sufferings and loss of** ## **amenities** 18. The original appellant had claimed an amount of 8 MACA No.710 of 2007 Rs.50,000/- each under the heads 'pain and sufferings' and 'loss of amenities'. However, the Tribunal awarded an amount of Rs.12,000/- and Rs.8,000/- respectively, under the said heads. 19. Considering the fact that the original appellant had sustained two fractures, that he was treated as an inpatient for a period of six days at the Medical College Hospital, Thiruvananthapuram and thereafter at the Amritha Hospital, Ernakulam and that he was indisposed for a period of six months, I hold that he is entitled for further enhancement of **Rs.13,000/-** under the head 'pain and sufferings' and **Rs.7,000/-** under the head 'loss of amenities'. ## **Other heads of claim** 20. With respect to the other heads of claim, particularly for the reason that the original appellant had not produced any document or mounted the box or examined the Doctor who treated him to substantiate his 9 MACA No.710 of 2007 disability, if any, I hold that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.35,000/-** (Rupees Thirty Five Thousand only) ( i.e., Rs.15,000/- under the head 'loss of earnings', Rs.13,000/under the head 'pain and sufferings and Rs.7,000/- under the head 'loss of amenities') with interest at the rate of 7% per annum from the date of claim petition till the date of realisation, after deducting interest for a period of 106 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 15.9.2021 in C.M Appln 1/2007, and a cost of Rs.5,000/-. The second respondentinsurer is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall 10 MACA No.710 of 2007 disburse the enhanced compensation amount to the appellants 2 to 4 in equal shares. Sd/- sks/10.11.2021 **C.S.DIAS, JUDGE**