Raghuvaran V.K. S/O Madhavan v. The Managing Director, Kerala State Road Transport Corporation, Trivandrum

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** ## **MACA.No.2593 OF 2008** **AGAINST THE AWARD IN OP(MV) NO.698/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **RAGHUVARAN.V.K S/O.MADHAVAN, AGED 45 YEARS, VANCHIPURACKAL HOUSE, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, THALAYOLAPARAMBU P.O.** **BY ADV. SRI.T.J.MICHAEL** ## **RESPONDENTS/RESPONDENTS:** ***1 K.N.RAJAMOHANAN NAIR S/O.NARAYANAN NAIR, KANNOTHU HOUSE, NEAR SHASTHAMKAVU TEMPLE, NEDUMKUNNAM KARA & VILLAGE (DELETED)** **(R1 IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 16/09/2015 IN IA 3045/15 IN MACA 2593/08)** **2 THE MANAGING DIRECTOR** **KERALA STATE ROAD TRANSPORT CORPORATION, TRIVANDRUM.** **R2 BY ADV. SRI.P.C.CHACKO (PARATHANAM), SC, KSRTC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2593 of 2008 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.698 of 2005 on the file of the Motor Accidents Claims Tribunal, Pala, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 01.03.2005, while he was riding a motorcycle bearing registration No.KL-5/L-1209. At the place of accident, the motorcycle was hit by a KSRTC bus bearing registration No.KL-15/1230 driven by the 1[st] respondent and owned by the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent did not appear. The 2[nd] respondent owner filed written statement admitting the accident; however, denying negligence alleged against the driver. The 2[nd] respondent contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant/ claimant. The 2[nd] respondent disputed the age, occupation, monthly income, etc. stated in the claim petition. The 2[nd] MACA No.2593 of 2008 3 respondent contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A15 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of KSRTC Bus by its driver. Since the said vehicle was not covered by a valid insurance policy, respondents 1 and 2 are held jointly and severally liable to pay the amount of compensation to the appellant/claimant. Under various heads, the Tribunal awarded a total compensation of Rs.3,27,450/-, together with interest at the rate of 9% per annum from 19.09.2005 till realisation, with a cost of Rs.8,175/-, and the 2[nd] respondent was directed to satisfy the award within one month. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 2[nd] respondent. MACA No.2593 of 2008 4 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 8. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 9. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court 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 standard because such MACA No.2593 of 2008 5 determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |unal under various heads reads thus;|| |---|---| |**Part I**|Rs.| |Medical expenses|1,03,000/-| |Loss of earnings|1,10,400/-| |Bystander expenses|10,000/-| |extra-nourishment|1,000/-| |Damage to clothing|250/-| |Transport to hospital|5,000/-| |**Part II**|| |Pain and suffering|25,000/-| |Permanent partial disability result in loss of<br>earning capacity|22,800/-| |Loss of amenities|25,000/-| |Future treatment expenses|25,000/-| |Total|**3,27,450/-**| 11. The accident occurred on 01.03.2005. At the time of accident, the appellant was aged 42 years. He claimed a monthly income of Rs.7,799/- as Telecom Mechanic in BSNL. In order to prove the monthly income of the appellant, Ext.A13 pay slip was placed on record. MACA No.2593 of 2008 6 12. The document marked as Ext.A3 is the accident register cum wound certificate and Ext.A7 is the discharge card issued from Medical College Hospital, Kottayam. Ext.A8 is the discharge summary issued from Caritas Hospital, Thellakom. Ext.A9 is the medical certificate issued from Chazhikattu Hospital, Thodupuzha. As per medical records, in the accident, the appellant sustained Type III compound fracture both bones of right leg and fracture of right tibial rim. He had undergone inpatient treatment for a period of 198 days in 7 different spells. Ext.A6 series of medical bills are for a sum of Rs.1,02,889/-. The Tribunal awarded a sum of Rs.1,03,000/- under the head medical expenses. 13. The document marked as Ext.A10 is the disability certificate issued by a Lecturer in Orthopaedics, Medical College Hospital, Kottayam, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 19%. The Tribunal accepted the assessment of permanent disability in Ext.A10, for the purpose of awarding compensation under various heads. 14. Towards loss of earning, the Tribunal awarded a sum of Rs.1,10,400/- as against Rs.1,65,614/- covered by Ext.A11 MACA No.2593 of 2008 7 certificate issued from the Office of the General Manager, BSNL, Telecom District, Kottayam. The Tribunal deducted 1/3[rd] of the said amount toward personal and living expenses. Such deduction is legally impermissible. Therefore, the compensation under the head loss of earning is re-fixed as Rs.1,65,614/-, resulting an additional compensation of **Rs.55,214/-** (1,65,614 – 1,10,400). 15. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 198 days in 7 spells. The accident is of the year 2005. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.7,000/-, resulting an additional compensation of **Rs.2,000/-** (7,000 – 5,000). 16. Towards bystander expenses the Tribunal awarded a sum of Rs.10,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 198 days in 7 spells. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander MACA No.2593 of 2008 8 expenses is re-fixed as Rs.29,700/- (150 x 198), resulting an additional compensation of **Rs.19,700/-** (29,700 – 10,000). The compensation under the head extra nourishment is re-fixed as Rs.19,800/- (100 x 198), resulting an additional compensation of **Rs.18,800/-** (19,800 – 1,000). 17. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2005, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 18. Towards medical expenses, the Tribunal awarded a sum of Rs.1,03,000/-, covered by Ext.A6 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. As evident from paragraph 8 of the award, the appellant was personally present before the Tribunal. Even at that time, there was external fixation and discharge of puss and he was on crutches. Considering the nature of injuries sustained and the treatment the appellant had MACA No.2593 of 2008 9 undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is refixed as Rs.30,000/-, resulting an additional compensation of **Rs.5,000/-** (30,000 – 25,000). 20. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 MACA No.2593 of 2008 10 years and multiplier of **5** for 66 to 70 years. 21. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 22. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.22,800/- (2,000 x 12 x 5 x 19/100). At the time of accident, the appellant was drawing a monthly income of Rs.7,799/- as Telecom Mechanic in BSNL. The permanent disability of 19% assessed in Ext.A10 disability certificate will have no bearing on the earning capacity of the appellant till his retirement from service at the age of 60 years. Therefore, disability compensation has to be granted to the appellant by taking a notional monthly income after his retirement, applying the multiplier of 7 applicable to the age group of 61 to 65 years and the percentage of disability as 19%. The notional monthly income of the appellant, after retirement is taken as Rs.3,900/- (50% of his monthly income as certified in Ext.A11). Therefore, the compensation under the head permanent MACA No.2593 of 2008 11 disability is re-fixed as 62,244/- (3,900 x 12 x 7 x 19/100), resulting an additional compensation of **Rs.39,444/-** (62,244 – 22,800). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.25,000/-. In Ext.A10 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 19%. Considering the nature of injuries sustained and 19% permanent disability on account of those injuries, as assessed in Ext.A7 disability certificate, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.1,40,658/-** (Rupees one lakh forty thousand six hundred fifty eight only) [55,214 + 2,000 + 19,700 + 18,800 + 500 + 5,000 + 39,444] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting MACA No.2593 of 2008 12 the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide his Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the 2[nd] respondent, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** JV **JUDGE**