Rajendran Pillai @ Rajan Raj Bhavanam v. Anilkumar Nediyamattathil Veedu and KSRTC

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** ## **MACA.No. 3252 of 2014** **AGAINST THE AWARD IN O.P(MV) 675/2004 of ADDITIONAL DISTRICT & SESSIONS JUDGE-III, MAVELIKKARA DATED 23-07-2014** ## **APPELLANT/PETITIONER:** **RAJENDRAN PILLAI @ RAJAN RAJ BHAVANAM, PULIMEL KARA, NOORANAD.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.PARVATHY NAIR SRI.A.R.DILEEP SRI.MANU SEBASTIAN** ## **RESPONDENTS/RESPONDENTS:** **1 ANILKUMAR NEDIYAMATTATHIL VEEDU, KALLEPURAM, PAMPADY, KOTTAYAM - 686 001. 2 K.S.R.T.C. REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHPAURAM - 695 001.** **BY ADVS. SMT.A.SALINI LAL SRI.R.SUNIL KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 3252 of 2014** **2** ## JUDGMENT This appeal is preferred by the victim of a motor accident occurred at about 6.15 p.m. on 10.11.2003 near Chevalippadi situated in Mavelikkara-Pandalam public road. On the fateful day, he was riding a motor cycle bearing registration No.KL-07AH 8644 and was knocked down by a K.S.R.T.C bus bearing registration No.KL-15-2253 (TN 219). He had sustained personal injuries of serious nature and damages to his motor cycle in the accident. He was rushed to Archana Hospital, Pandalam for treatment and expended a huge sum towards treatment. During the course of treatment his right leg was amputated at the level, below knee. Alleging that the accident was occurred due to rash and negligent driving of the KSRTC bus by it's driver and claiming a total sum of Rs.6,10,000/- as compensation, claim petition was preferred before the Motor Accident Claims Tribunal, Mavelikkara (for short 'the Tribunal') as O.P.(MV) No.675 of 2004 . The driver and owner of the KSRTC bus were arrayed as respondents 1 and 2 in the claim petition. **MACA.No. 3252 of 2014** **3** 2. The 1[st] respondent remained ex-parte. The 2[nd] respondent had filed written statement before the Tribunal contending that the 1[st] respondent had not driven the bus in a rash and negligent manner and cannot be fastened with liability for causing the accident and that the accident was resulted solely due to the rash and negligent riding of the motorcycle by the petitioner himself. The age, occupation and income of the petitioner and the compensation claimed by him were also disputed. 3. During trial, the petitioner mounted the box to depose as PW1 and one among the member of the Medical Board, that issued Ext.X1 disability certificate, was examined as PW2. Documentary evidence was also adduced as Exts.A1 to A22 and Ext.X1. The contesting 2[nd] respondent failed to adduce any evidence. 4. On appreciation of the evidence on record, the Tribunal found the driver of the KSRTC bus rash and negligent in driving the same and causing the accident. The Tribunal had also found the petitioner entitled to get compensation and arrived at Rs.6,42,725/- as the compensation payable. Petitioner was **MACA.No. 3252 of 2014** **4** highly aggrieved by the quantum of compensation arrived at by the Tribunal and accordingly approached this Court in the captioned appeal seeking enhancement. 5. Sri.George Varghese Perumpallikuttiyil, the learned counsel for the appellant has addressed this Court on the failure of the Tribunal to fix the monthly income correctly for the purpose of arriving at compensation for loss of earning. According to him, the Tribunal is also unjustified in considering a period of lesser duration while calculating the compensation under that head. The further contention of the learned counsel was that though the percentage of disability of the petitioner got assessed by a Medical Board and a certificate assessing his permanent disability was obtained and marked in evidence as Ext.X1, the Tribunal failed to arrive at compensation for the loss of earning capacity of the petitioner based on the dictum laid down by the Apex Court in **Raj Kumar v. Ajay Kumar and another** [2011(1) SCC 343]. The learned counsel urged for re-consideration and modification of the compensation awarded under the head permanent disability as directed by the dictum cited supra. It was further contended that the Tribunal failed to **MACA.No. 3252 of 2014** **5** arrive at reasonable sums as compensation under other heads. Accordingly, modification of the compensation awarded by the Tribunal is sought. Though the cause list shows the name of a counsel as Standing Counsel for KSRTC, none turned up to submit any arguments to the contrary. 6. The contentions raised by the learned counsel for the appellant were appreciated in the backdrop of the evidence on record to see the sustainability of any of those. As rightly pointed out by the learned counsel for the appellant, the monthly income for the purpose of calculation of compensation was fixed by the Tribunal as Rs.5,000/-. During the course of examination of the petitioner as PW1, he has stated that he was employed as a Rigger Foreman in a firm namely 'GITIC Engineering' at Qatar at the relevant time of accident and the accident was during a period while he was on leave. According to PW1, in view of the serious injuries sustained in the accident and amputation of right leg followed thereby, he was incapacitated not only to do the work he was doing at the relevant time but also from doing any other job. According to him, he lost the job as a Rigger Foreman at GITIC Engineering at Qatar due to the injury sustained in the **MACA.No. 3252 of 2014** **6** accident. He has also gone to the extent of deposing that he was totally incapacitated from his earning capacity. As his oral evidence revealed he was getting a monthly income of more than 550 Riyals from his job as Rigger Foreman (equivalent to a sum above Rs.20,000/-). According to him, he was examined by the Medical Board and his permanent disability was assessed as 34%. Inviting the attention of this Court to the aforestated aspects the learned counsel pleaded for modification of the award under challenge by enhancement of compensation. 7. The orthopaedic surgeon who was a member of the Medical Board was examined as PW2. The permanent disability of the petitioner was assessed as 34% based on the amputation of his right leg following the accident. Though an attempt was made by the counsel to establish through PW2 that the disability of the petitioner is more than that certified in Ext.X1, PW2 did not concede that. According to him, it is not feasible in a country like India in view of the unemployment and for want of numerals above 15 in the Mc Bride Scale to fix a percentage higher than that was assessed by him, for grading the permanent occupational disability to a higher extent. According to him, the **MACA.No. 3252 of 2014** **7** age and occupation of the petitioner was considered by the Medical Board and based on that the disability was assessed as 34%. 8. The petitioner had adduced documentary evidence and that takes in documents pertaining to the criminal case registered based on the accident, the medical documents evidencing the various treatment procedures undergone by the petitioner, documents describing the employment of the petitioner and the qualification of the petitioner to do the work, the age and the disability of the petitioner. It is contended by the learned counsel that two certificates have been produced by the petitioner and got marked in evidence, wherein permanent disability of the petitioner was certified. According to him, Ext.A20 dated 22.03.2010 and Ext.X1 dated 11.07.2012 were the certificates produced to establish his permanent disability. It is contended by the learned counsel that though a member of the Medical Board that issued Ext.X1 was examined as PW2, he failed to tender any definite information on the petitioner's loss of earning capacity and therefore it is left for assessment by the Court based on materials available to it. On the basis of Ext.A20, **MACA.No. 3252 of 2014** **8** it was canvassed by the learned counsel that permanent physical disability of the petitioner being assessed therein as 40%, the Tribunal ought to have considered the same as basis for the purpose of assessment of compensation for loss of earning capacity. 9. It is true that PW1 has given oral evidence that he was totally disabled and has lost his earning capacity in full, due to amputation of his right leg. It is also deposed that his employment as a Rigger Foreman was lost following the amputation of his leg in the accident. PW2 had also stated that in view of lack of numerals above 10 to 15 in the Mc bride scale, the Medical Board was unable to assess percentage of disability higher than 34% as assessed by them. This Court is convinced from a glance of Ext.A20 that though the permanent disability was assessed by another Medical Board as 40%, none of the members of the said Board was examined by the petitioner. It is also brought out on a perusal of Ext.A20 that no specific reasons have been stated therein for the assessment of 40% permanent disability. More over, Ext.A20 was only a certificate issued to the petitioner in consideration of his status as a handicapped person. **MACA.No. 3252 of 2014** **9** The nature of the disability considered by the Medical Board while certifying the disability of the petitioner as 40% is also not discernible from Ext.A20. In the column meant for specifying the nature of disability, all heads are seen maintained without any of them being striken off. Therefore, this court is in darkness as to how 40% disability was arrived at by the Medical Board in Ext.A20. Therefore this Court finds it unsafe to rely upon Ext.A20. 10. In the said circumstances, Ext.X1 and the oral evidence tendered by PW2 on its basis alone can be the basis for arriving at compensation for disability which was actually done by the Tribunal. This Court did not find any reason to deviate from the stand of the Tribunal from the discussion herein above made. 11. It has been deposed by PW1 that he was employed as Rigger Foreman at Qatar at the relevant time of incident. It is clear from a reading of evidence of PW1 that the respondent was not successful in controverting the version of PW1 regarding his employment. Eventhough materials have been produced by the petitioner and got marked as Exts.A9 to A16, the petitioner had not taken measures to examine the employer, who has signed **MACA.No. 3252 of 2014** **10** those. There is total want of evidence to establish the actual monthly income earned by the petitioner at the relevant time of accident. In the aforesaid circumstances, the documents having not been proven, the Tribunal discarded those documents. Having left with no other option, the Tribunal had fixed the monthly income as Rs.5,000/- notionally. It is noticed from the impugned award that compensation for loss of earning was arrived at for six months period. Since his right leg was amputated following the accident, this Court finds every justification in taking one year period for computation of loss of earning. The compensation when worked out with Rs.5,000/- as monthly income and calculated for a period of one year Rs.60,000/- is arrived at. Rs.30,000/- having been awarded by the Tribunal, Rs.30,000/more will be payable under that head. It is noticed from the documentary evidence available on record that the petitioner had undergone inpatient treatment for 53 days. The Tribunal had granted Rs.3,000/- each under the respective heads, bystanders expenses and extra nourishment. The accident being in the year 2003, indisputably the sums fixed as compensation are not adequate. When Rs.150/- and Rs.100/- are considered under **MACA.No. 3252 of 2014** **11** the respective heads bystander expenses and extra nourishment for a period of 53 days, the compensation payable will be arrived at as Rs.7,950/- and Rs.5,300/-. Since the Tribunal had already awarded Rs.3000/- each under the aforesaid heads, the compensation payable in the refixation as additional amount will be Rs.4,950/- and Rs.2,000/- respectively. The petitioner was a resident of Nooranadu. The accident was occurred at Chevalippadi situated in Mavelikkara-Panthalam Road. He had availed treatment from Archana Hospital, Panthalam, Christian Mission Hospital, Panthalam and Medical College Hospital, Kottayam. In view of the above aspects, this Court finds justification in granting Rs.3,000/- more under the head transportation expenses. Even though it is evidenced that the right leg of the petitioner was amputated during the course of treatment, Tribunal had granted only Rs.30,000/- and Rs.40,000/- under respective heads of pain and suffering and loss of amenities in life. As evidenced the petitioner was confined in the hospital with all his discomforts and difficulties for 53 days. Taking those aspects into consideration, this Court finds justification in granting an additional sum of Rs.20,000/- under **MACA.No. 3252 of 2014** **12** the head pain and suffering and Rs.10,000/- under the head loss of amenities and enjoyments in life. In the result, this appeal stands allowed in part and the petitioner is entitled to get a total sum of Rs.69,950/- (Rupees sixty nine thousand nine hundred and fifty only) [30,000+30,000+,4,950+2,000+3,000] (rounded off to Rs.70,000/-) additionally. The 2[nd] respondent shall deposit the aforesaid sum with interest at the rate of 8% per annum from the date of claim petition till the date of realisation, within a period of 2 months from the date of receipt of a copy of this judgment. Parties to the appeal shall bear their respective costs. ## **Sd/-** **MARY JOSEPH** **JUDGE** ttb