Rijina d/o Balan v. Suresh Babu K.P. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 22ND DAY OF AUGUST 2016/31ST SRAVANA, 1938 MACA.No. 352 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 488/2008 of MACT, VATAKARA DATED 17-12-2010 APPELLANT(S)/PETITIONER: ----------------------------- RIJINA D/O.BALAN, AGED 18 YEARS THEKKAN VALIYATH P.O.THOONERI, MUDAVANTHERI AMSOM DESOM BY ADV. SRI.ZUBAIR PULIKKOOL RESPONDENT(S):RESPONDENTS ----------------------------------- 1. SURESH BABU.K.P. S/O.KANNAN, AGE NOT KNOWN, KATTIL PARAMBATH HOUSE, P.O.ORAVILAM, PERINGODU, THALASSERY, KANNOOR DISTRICT, KERALA, PIN-670 101, - (R.C.OWNER OF BUS BEARING NO.KL-13-H-5851). 2. MAHESH.P - S/O.GOVINDAN.P, AGED 31 YEARS, PARAMBATH HOUSE, P.O.ORAVILAM, PERINGODU, THALASSERY, KANNOOR DISTRICT, KERALA, PIN-670 101, (DRIVER OF BUS BEARING NO.KL-13-H-5851). 3. ORIENTAL INSURANCE COMPANY LIMITED KPK PAULO, NEAR KOTANCHERY PUMP, P.O.THANA, KANNUR, KANNUR DISTRICT, KERALA, PIN-670 001 (INSURER OF BUS BEARING NO.KL-13-H-5851). R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22-08-2016 ALONG WITH MACA.NOS.366 AND 367 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. Nos.352, 366 & 367 OF 2012 ==========================** Dated this the 22[nd] day of August, 2016 ## **JUDGMENT** _Ravikumar, J._ These appeals arose from claim petitions germinate from the same occurrence, which were disposed of by a common award dated 17.2.2010 of the Motor Accidents Claims Tribunal, Vatakara. The appellant-claimants in M.A.C.A.Nos. 352 and 366 of 2012 were then college going students. In M.A.C.A.No.367 of 2012, the appellantclaimant was an aged lady eking her livelihood by engaging herself in coolie activities. M.A.C.A.No.352 of 2012 is directed against the judgment and award in O.P.(MV).No.488 of 2008 and M.A.C.A.366 of 2012 is filed against the judgment and award in O.P.(MV).No.1243 of 2008 and M.A.C.A.No.367 of 2012 is filed against the judgment and award in O.P.(MV).No.1304 of 2008. All those claim petitions **M.A.C.A.352/2012 & conn.** 2 were filed under section 166 of the Motor Vehicles Act. All the appellants are aggrieved by and dissatisfied with the quantum of compensation and the appeals have been filed seeking enhancement of the quantum of compensation. In the circumstances expatiated above, we have heard these matters jointly and they are being disposed of by this common judgment. 2.The facts in brief, necessary to dispose of these appeals, are as hereunder:- The claimants/appellants were passengers in a bus bearing Reg.No.KL-13-H-5851 which met with an accident on 7.5.2007 at about 8.15 a.m. It was being driven by the second respondent. The bus capsized causing injuries to the claimants and other passengers. The appellants/claimants have raised rashness and negligence from the part of the second respondent who was driving the bus at the relevant point of time as the cause of the accident. They have also taken necessary averments to make the first respondent, the owner of the bus, vicariously liable and the third respondent, the insurer of the 3 ## **M.A.C.A.352/2012 & conn.** said vehicle to indemnify the first respondent. In O.P.(MV). No.488/2008, the Tribunal granted a total compensation of `17,000/as against a claim of `1,50,000/- and in O.P.(MV).No.1243/2008, the Tribunal granted a total compensation of `44,125/- as against a claim of `2,00,000/-. In O.P.(MV).No.1304/2008, the Tribunal granted a total compensation of `71,115/- as against a claim of `2,00,000/-. On appreciating the evidence on record, the Tribunal held that the accident occurred due to the rashness and negligence on the part of the second respondent and found that the first respondent is liable to pay the compensation. The third respondent was held liable to indemnify the first respondent. In spite of such findings and consequential directions, none of the respondents filed appeals or cross objections in any of the above appeals. Hence, the only point for consideration in all these appeals, is whether or not the quantum of compensation is to be enhanced. ## **M.A.C.A.352/2012** 3.At the time of the accident, the appellant was a First Year Degree student. In the claim petition, it is stated that she was also **M.A.C.A.352/2012 & conn.** 4 taking tuition for students. Ext.A2 is the wound certificate in respect of the appellant which would reveal that in the accident, she sustained multiple abrasion and tenderness. There was also a fracture on the nasal bone. After the accident, she was admitted in Thalassery Cooperative Hospital where she remained as an inpatient for three days. Though the appellant claimed that the injuries sustained in the accident resulted in permanent disability, the medical board, on examination, did not find favour with his claim and consequently, no permanent disability was found. The learned counsel for the appellant contended that a perusal of the schedule of compensation given in the impugned award would go to show that the Tribunal had granted only meager amounts under different heads. It is submitted that towards pain and suffering, only an amount of `12,000/- was granted despite the fact that she sustained severe injuries including nasal bone fracture. Towards loss of amenities, no amount whatsoever was granted, it is contended. Having heard the learned counsel for the appellant and also the learned counsel for the third respondent, we are of the view that the only question to be considered is whether the **M.A.C.A.352/2012 & conn.** 5 appellant is entitled to get enhancement of compensation under the heads 'pain and suffering' and 'loss of amenities'. As noticed hereinbefore, the appellant had been an inpatient for three days. Taking note of the nature of the injuries and the period of treatment, we are of the view that an amount of `5,000/- more can be granted under the head pain and suffering. It is granted. The appellant was a college going student at the time of the accident and the injuries must have adversely affected her studies during the said period. We are of the view that, going by the nature of the injuries, the Tribunal ought to have granted some amount towards loss of amenities and adverse effect on studies. Taking note of the aforesaid circumstances, under the said combined head, we are inclined to grant an amount of `10,000/-. In the light of the discussions as above, the appellant is entitled to get an additional compensation of `15,000/-. It is awarded. ## **M.A.C.A.No. 366 of 2012** 4.The appellant was also a passenger in the bus involved in the accident. She was also a college going student. Going by Ext.A7 **M.A.C.A.352/2012 & conn.** 6 wound certificate and the subsequent CT scan, it is evident that she had sustained the following injuries in the accident. 1. Undisplaced fracture in inferior public ramus on right side. 2. Comminuted fracture with displacement of fragments involving left iliac crest. 5.She had been an inpatient for two days. The injuries sustained by her in the accident resulted in permanent disability and the medical board assessed the disability as 6% as is obvious from the discussions made in paragraph 55 of the impugned award. The Tribunal found that nothing is discernible from the certificate how the medical board assessed the percentage of permanent disability and further that the fractures of pubic rami and iliac crest were united. It was further held that since none of the doctors who issued the disability certificate was examined, no amount could be granted for permanent disability or for reduction in earning capacity. Virtually, no amount was granted for permanent disability The learned counsel for the appellant further contended that besides declining to grant compensation for permanent disability, the Tribunal also granted only meager amounts under the **M.A.C.A.352/2012 & conn.** 7 heads 'pain and suffering' and 'loss of amenities and conveniences'. Per contra, the learned counsel for the third respondent submitted that the Tribunal cannot be found fault with, in not granting compensation for permanent disability and the reasons assigned by the Tribunal for declining to grant such compensation cannot be said to be devoid of basis on merits. It is also submitted by the learned counsel for the third respondent that a bare perusal of the schedule of compensation given in the impugned award would reveal that adequate compensation has been granted by the Tribunal on all heads. 6.We will firstly consider the question whether the Tribunal was justified declining to grant compensation for permanent disability. It is a fact that the medical board which examined the appellant assessed the permanent disability as 6%. When disability of a claimant was assessed by a medical board on being referred by a Tribunal, there is absolutely no reason for not acting upon it on the reason that none of the members of the Board was not examined. The nature of the injuries revealed from Ext.A7 wound certificate and CT scan report as **M.A.C.A.352/2012 & conn.** 8 discussed in the impugned award and also going through the reasons assigned in the award, we do not find any reason to decline the certification made by the medical board regarding permanent disability. In such circumstances, we are inclined to take the entire percentage of disability assessed by the medical board viz., 6% for calculation purpose. The appellant was then a college going student aged 19 years. In other words, she was a non-earning person. In such circumstances, in the light of the decision of the Hon'ble Apex court in **R.K.Malik and another v. Kiran Pal and others [(2009) 14 SCC 1],** for the purpose of identifying the multiplicand as also the multiplier, the second schedule to the M.V.Act has to be looked into though the claim petition was filed under section 166, M.V.Act. In the case of non-earning person, the annual income has to be taken as `15,000/and going by the schedule, for the age group above 15 years and up to 20 years, the multiplier applicable is 16. In such circumstances, taking into account such relevant factors and also the percentage of permanent disability, if the compensation for permanent disability is assessed, the appellant would be entitled to get an amount of **M.A.C.A.352/2012 & conn.** 9 `14,400/- (15000x6x16/100). Besides the said amount, the appellant is also entitled to get enhancement of compensation under the heads 'pain and suffering' and 'loss of amenities and conveniences'. Taking note of the injuries and the period of treatment underwent by her, we are of the view that it is only just and proper to grant an amount of `10,000/- more under the head. 'pain and suffering'. It is granted. Since we have already granted compensation for permanent disability, we are of the view that, it is only just and proper to enhance the compensation granted under the head loss of amenities and conveniences. Accordingly, am amount of `5,000/- is granted under the said head. In the light of the above discussions, the appellant would be entitled to get an additional sum of `29,400/-. It is awarded. ## **M.A.C.A.No.367 of 2012** 7.The appellant herein was also a passenger in the bus involved in the accident in question. Going by the disability certificate, the appellant was a sexagenarian at the time of the accident. In the claim petition, the appellant stated that she was aged 50 years on the date of **M.A.C.A.352/2012 & conn.** 10 the accident. It is further stated therein that she was a coolie by profession and was earning `6,000/- per month. She was examined by a medical board and Ext.C3 is the disability certificate issued by the Board. Going by the same, she was handicaped by deltoid muscle paralysis and she had also sustained a fracture on the clavical bone. The medical board assessed the permanent disability as 21%. Taking note of the fact that no reason whatsoever has been stated by the Board for arriving at 21% of disability, the Tribunal declined to take the entire percentage of disability and took only 10% permanent disability for calculation purpose. The Tribunal took the monthly income of the appellant notionally at `3,000/-. The learned counsel for the appellant contended that the Tribunal went wrong in fixing the percentage of permanent disability as also the monthly income. It is further contended that the amount granted under the heads 'pain and suffering' as also 'reduction in earning capacity' are also meager and they also invite upward modification. The learned counsel for the third respondent contended that taking note of the fact that the appellant was a sexagenarian at the time of the accident, the fixation **M.A.C.A.352/2012 & conn.** 11 of the monthly income by the Tribunal cannot be said to be on lower side. It is also submitted by the learned counsel that the multiplier ought to have been taken only as 9 with reference to the age of the appellant recorded in Ext.C3. 8.We will firstly consider whether the Tribunal went wrong in fixing the monthly income of the appellant. It is evident from the award itself that the Tribunal fixed the monthly income of the appellant treating her as a coolie. The accident occurred on 7.5.2007. Evidently, the appellant was aged more than 50 years on the date of the accident. In such circumstances, the appellant is justified in claiming that her monthly income ought to have been fixed above the notional income used to be taken in the case of house-wives belonging to her age group. Taking note of the age of the appellant as also the year of the accident, we are inclined to take the monthly income of the appellant as `4,000/- for calculation purpose. Since the age of the appellant has been stated in the claim petition as 50 and the age is shown as 60 in the disability certificate and in the absence of any **M.A.C.A.352/2012 & conn.** 12 authentic record relating her age, we do not propose to interfere with the multiplier identified by the Tribunal viz., '11'. The Tribunal has virtually granted compensation under the head 'loss of earning capacity' taking note of the disability certified under Ext.C3, but taking the disability as 10% only. The nature of the injuries constrain us not to interfere with the assessment of permanent disability by the Tribunal. Since the disability assessed is related only to the limb we do not find any illegality in such assessment. There is no case for the appellant that the clavical bone was not united. In such circumstances, we are of the view that re-assessment need be made solely by substituting the monthly income fixed by us. Upon such reassessment, the appellant is entitled to get `13,200/- towards reduction in earning capacity. It is awarded. Taking note of the nature of the injuries, the appellant is entitled to get `10,000/- more towards loss of amenities. Towards pain and suffering, taking note of the nature of injuries, we are inclined to grant `5,000/- additionally. In view of the re-fixation of the monthly income, the appellant is entitled to get `3,000/- more in addition to the amount already awarded 13 ## **M.A.C.A.352/2012 & conn.** towards loss of earnings. Towards bystanders expenses, no amount was granted by the Tribunal. Taking note of the nature of the injuries, we are of the view that the appellant must have had the service of a bystander for some time. In such circumstances, we are inclined to grant `3,000/- more under that head. In the light of the discussions as above, the appellant would be entitled to get an additional compensation of `34,200/-. It is awarded. In the result, the above appeals are allowed. In M.A.C.A. No.352 of 2012, the appellant is awarded an additional compensation of `15,000/-. In M.A.C.A. No.366 of 2012, the appellant is awarded an additional compensation of `29,400/-. In M.A.C.A. No.367 of 2012, the appellant is awarded an additional compensation of `34,200/-. The additional compensation awarded will bear 8% interest from the date of the petition till realisation. The third respondent is directed to deposit the additional compensation awarded in the above appeals along with interest, within a period of two months from the date of receipt of a copy of this judgment. On such **M.A.C.A.352/2012 & conn.** 14 deposit, the amounts shall be released to the respective appellantsclaimants, on application. The parties shall bear their respective costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.352/2012 & conn.** 15 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.352/2012 & conn.** 16