Reghuvaran Nair v. The Managing Director, Kerala State Road Transport Corporation Ltd. & Others

MACA NO. 1415 OF 2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943** ## **MACA NO. 1415 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 169/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRIVANDRUM** ## **APPELLANT/S:** REGHUVARAN NAIR, S/O PARAMESWARAN PILLAI, AATHAMARAMAM, EDAKKODU, PALLICHAL, NEMOM P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.R.T.PRADEEP SRI.P.BIJIMON ## **RESPONDENT/S:** 1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION LTD., TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695001. 2 SUKUMARANA KUTTY NAIR, KAMALALAYAM, EDAKKODU, NEMOM P.O., THIRUVANANTHAPURAM-695020. 3 THE MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM-695001. 4 THE NATIONAL INSURANCE CO. LTD., ST. JOSEPH'S PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM-695011. BY ADV SRI.GEORGE CHERIAN THIRUVALLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1415 OF 2012 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.169/2003 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 30.08.2002. It was his case that, on the above said date, while he was riding pillion on a scooter bearing registration No.KEV-5672 from East Fort to Kaimanam, a bus bearing registration No.KL-15-1776, driven in a rash and negligent manner, hit the scooter on which the appellant was traveling. The bus was owned by the 1[st] respondent and insured with the additional 4[th] respondent. The scooter was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a timber merchant and was earning a monthly income of Rs.6,000/-. The appellant sustained serious injuries including a fracture of his pelvic bone Type III with sacral ALA fracture and coccygeal fracture. MACA NO. 1415 OF 2012 3 He was treated as an inpatient for a period of 99 days in two spells. The appellant has suffered permanent disability. Hence the appellant claimed a compensation of Rs.10,00,000/- from the respondents, which claim was limited to Rs.6,00,000/-. 3. The 2[nd] respondent did not contest the proceeding and was set ex-parte. 4. The 1[st] respondent had filed a written statement contending that the accident occurred due to the negligence of the rider of the scooter. Nonetheless, it was stated that the bus was insured with the additional 4[th] respondent. 5. The 3[rd] respondent had filed a written statement stating that it was an unnecessary party to the proceedings because the accident was caused due to the negligence of the driver of the bus. 6. The additional 4[th] respondent filed a written statement, interalia, contending that the claim petition was not maintainable. The charge sheet filed by the Police shows that it was only a motor occurrence. Subsequently, at the influence of the appellant, the Police falsely implicated the driver of the bus as an accused. The additional 4[th] respondent also denied the income and occupation of the appellant. It was stated that MACA NO. 1415 OF 2012 4 the compensation claimed was excessive. However, the 4[th] respondent admitted that the bus had a valid insurance coverage. 7. The appellant had produced and marked Exts.A1 to A8 in evidence. The 3[rd] respondent produced the insurance policies which were marked as Exts.B1 and B2. The medical record pertaining to the treatment of the appellant was summoned and marked as Ext.X1. 8. The Tribunal, after analysing the pleadings and materials on record, by the impugned award, allowed the claim petition in part by permitting the appellant to recover from the 4[th] respondent an amount of Rs.3,68,601/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard Sri. R.T. Pradeep, the learned counsel appearing for the appellant/petitioner, Sri. Alex Antony, the learned counsel appearing for the 1[st] respondent, Smt. K.S. Santhi, the learned counsel appearing for the 3[rd] respondent and Smt. Deepa George, the learned counsel appearing for the additional 4[th] respondent. MACA NO. 1415 OF 2012 5 11. The point that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 12. Ext.A4 charge sheet filed by the City Traffic Police, Thiruvananthapuram in Crime No.1477/2002 proves that the accident was caused due to the negligence of the driver of the bus. Admittedly, the 1[st] respondent was the owner and the additional 4[th] respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Ext.A4 charge sheet. Likewise, the 4[th] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 4[th] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 13. The appellant had claimed that he was a timber merchant by profession and he was earning a monthly income of Rs.6,000/-. To substantiate his contention, he produced Ext.A7 certificate issued by the Chief Executive Officer of MACA NO. 1415 OF 2012 6 M/s.Orient Group, Thiruvananthapuram, certifying that the appellant was carrying on timber business for a period of three years preceding the accident. However, the income of the appellant is not mentioned in Ext.A7. 14. The learned counsel appearing for the appellant relied on the decision of the Honourable Supreme Court in **Shivakumar M. vs. Managing Director, Bangalore Metropolitan Transport Corporation** [(2017) 5 SCC 79] to drive home his contention that, if there is no serious dispute as regards the income and avocation of the injured/claimant, the income as stated in the claim petition can be taken into consideration. Therefore, the learned counsel submitted that the appellant's income may be taken as Rs.6,000/- as claimed in the claim petition as there is no serious dispute. 15. I am unable to agree with the above submission because there is nothing on record to prove the monthly income of the appellant @ Rs.6,000/- as claimed in the claim petition. Ext.A7 only states that the petitioner was doing business for three years preceding the accident. Moreover, the appellant has not proved Ext.A7 by examining the author of 7 MACA NO. 1415 OF 2012 the said certificate. Therefore, I am of the definite view that the appellant's income has to be fixed on a notional basis as laid down in a plethora of precedents. 16. In **Chameli Devi vs. Jivrail Mian** [2019 KHC 5351] ,the Honourable Supreme Court has fixed the notional income of a skilled labourer, namely, carpenter in the year 2001 at Rs.5,000/-. 17. Taking into account the yardstick laid down in the afore-cited decision and considering the fact that the accident in the case at hand had occurred in the year 2002, I am of the opinion that the appellant's notional monthly income can be fixed at Rs.5,000/-. Hence, I fix the 'notional income' of the appellant at Rs.5,000/- per month. ## **Loss of earnings** 18. The Tribunal has found that the appellant was indisposed for a period of five months. Taking into account the serious nature of injuries sustained to the appellant, I confirm the said finding. However, in view of the refixation of the notional monthly income of the appellant at Rs.5,000/-, I MACA NO. 1415 OF 2012 8 award him an amount of Rs.25,000/- towards ‘loss of earnings’, instead of Rs.15,000/- awarded by the Tribunal. ## **Disability** 19. The appellant had produced Ext.A6 disability certificate issued by the Department of Physical Medicine and Rehabilitation, KIMS Hospital, Kumarapuram, to prove that he has limitation of flexion by 40 degrees in right hip joint, (ii) limitation of flexion by 20 degrees in left hip joint and (iii) he has urgency of urination secondary to urethral injury. The Doctor has certified that the appellant has a permanent disability of 20%. 20. The Tribunal after evaluating Ext.A6 disability certificate and Ext.X1 case sheet fixed the permanent disability of the appellant at 18% as per the Mc Bride scale. 21. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has categorically held that in the case of an injury claim, what needs to be looked into is the functional disability of the injured/claimant. It is also held that if a disability certificate is marked in evidence with the consent of the parties, the same can be taken on its face value. MACA NO. 1415 OF 2012 9 22. In the instant case, it is seen that Ext.A6 disability certificate and Ext.X1 treatment records were marked in evidence without any objection or protest from the respondents. Taking into account the nature of injuries sustained by the appellant as per Ext.A6 and the fact that he was a timber merchant, I fix his functional disability at 20% as certified in Ext.A6. ## **Multiplier** 23. The appellant was aged 43 years at the time of the accident. In view of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant multiplier to be adopted is “14”. ## **Loss due to disability** 24. Taking into account the above mentioned factors namely, the notional monthly income of the appellant at Rs.5,000/-, his functional disability at 20% and the multiplier at '14', I award him an amount of Rs.1,68,000/- towards ‘loss due to disability’ instead of Rs.84,240/- awarded by the Tribunal. ## **Bystander expenses and Extra nourishment** 25. The Tribunal has awarded the appellant an amount of MACA NO. 1415 OF 2012 10 Rs.9,900/- towards 'bystander expenses' and Rs.2,000/towards 'extra nourishment', which are very much on the lower side. 26. It is proved and established that the appellant was treated as an inpatient for a period of 99 days in two spells. Taking into consideration the fact that the accident occurred in the year 2002, I am of the firm view that the appellant is entitled to an amount of Rs.250/- per day for a period of 99 days towards 'bystander expenses', which works out to Rs.24,750/- and Rs.150/- per day for a period of 99 days towards 'extra nourishment', which comes out to Rs.14,850/-. ## **Pain and sufferings and loss of amenities** 27. The Tribunal has awarded an amount of Rs.20,000/under the head 'pain and sufferings' and Rs.28,080/- under the head 'loss of amenities'. 28. On a consideration of the fact that the appellant was treated as an inpatient for a period of 99 days, that he was indisposed for a period of 99 days and that he has suffered a functional disability of 20%, I award him an amount of Rs.10,000/- under the head 'pain and sufferings' and an amount of Rs.11,920/- under the head 'loss of amenities'. MACA NO. 1415 OF 2012 11 29. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 30. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [448 x 384] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 15,000 25,000<br> 2. Transportation expenses 2,000 2,000<br>3. Clothing 500 500<br>4. Bystander expenses 9,900 24,750<br>5. Extra nourishment 2,000 14,850<br>5. Medical expenses 2,06,881 2,06,881<br>6. Pain and sufferings 20,000 30,000<br>**----- End of picture text -----**<br> MACA NO. 1415 OF 2012 12 **==> picture [448 x 110] intentionally omitted <==** **----- Start of picture text -----**<br> 7. Loss of amenities 28,080 40,000<br>8. Loss due to disability 84,240 1,68,000<br>Total 3,68,601 5,11,981<br>**----- End of picture text -----**<br> In the result the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,43,380/- with interest @ 7% per annum from the date of petition till the date of deposit and a cost of Rs.15,000/-. The 4[th] respondent is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/07.02.22