Sadasivan v KSRTC and The National Insurance Co. Ltd. (MACA No. 1188 of 2010)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943** **MACA NO. 1188 OF 2010** **AGAINST THE JUDGMENT IN OP(MV) 1079/2000 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, MAVELIKKARA** ## **APPELLANT/PETITIONER:** SADASIVAN,S/O.ACHUTHAN, KARALISSERIL VEEDU, NEAR MUTHUKULAM MAYIKKAL TEMPLE,, MUTHUKULAM VILLAGE, MUTHUKULAM SOUTH P.O., KAYAMKULAM. BY ADVS. SRI.S.MOHANAN SRI.R.REJI SRI.M.V.THAMBAN ## **RESPONDENTS/RESPONDENTS:** 1 MANAGING DIRECTOR, KSRTC KERALA STATE ROAD TRANSPORT CORPORATION LTD.,, CHIEF OFFICE, THIRUVANANTHAPURAM. 2 BHARATHAN SO. KARUNAKARAN PILLAI THEKKAVLI VEEDU, CHERTHALA MUNICIPAL CORPORATION, WARD NO.XX, CHERTHALA VILLAGE, CHERTHALA P.O., CHERTHALA TALUK – 688 524. 3 THE NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, P.B.NO.434, ST.JOSEPH PRESS, BUILDING, VAZHUTHAVAUD, THIRUVANANTHAPURAM,, REPRESENTED BY THE DIVISIONAL MANAGER,, NATIONAL INSURANCE CO.LTD., KAYAMKULAM DIVISION, NELSON COMPLEX, P.O KAYAMKULAM, PIN690 502. BY ADVS. SRI.P.C.CHACKO, SC, FOR R1 SRI.GEORGE CHERIAN THIRUVALLA FOR R3 SRI.JOY GEORGE, SC, FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1188 OF 2010** **2** ## **JUDGMENT** The appellant was the petitioner in O.P (MV) No.1079/2000 on the file of the Motor Accidents Claims Tribunal, Mavelikara. 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 that he sustained in an accident on 7.4.1999. It was his case that while he was travelling with his wife in a bus bearing Reg. No.KL15-2772 (bus) from Kayamkulam to Thiruvananthapuram, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent, when the bus reached a place called Navayikkulam, the bus hit it against a mini lorry (lorry). The bus lost control and the appellant was thrown out of the seat and he fell inside the **MACA NO. 1188 OF 2010** **3** bus sustaining serious injuries, including a fracture of the Pelvis floor of acetabula. The appellant was treated as an inpatient in the Medical College Hospital, Thiruvananthapuram from 7.4.1999 to 1.5.1999. He was a farmer by profession aged 60 years and earning a monthly income of Rs.3,000/-. Hence the appellant claimed an amount of Rs.2,13,500/- as compensation from the respondents. 3. The appellant’s wife had also filed O.P (MV) 1078/2000 before the same Tribunal, seeking compensation on account of the injuries that she sustained in the same accident. 4. The 3[rd] respondent filed written statements in the claim petitions contending that the accident occurred due the negligence of the driver of the lorry. The claim petition was bad for non-joinder of necessary parties. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. **MACA NO. 1188 OF 2010** **4** 5. The Tribunal jointly consolidated and jointly tried the two original petitions. 6. The appellant was examined as PW1 and Exts.A1 to A19 were marked in evidence in the two claim petitions. The respondents did not let in any contra evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by a common award , allowed the claim petition filed by the appellant by permitting him to realise an amount of Rs.76,000/- from the 3[rd] respondent with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.R.Reji, the learned counsel appearing for the appellant/petitioner, Sri.P.C.Chacko, the learned counsel appearing for the 1[st] respondent and Sri.George.A.Cherian, the learned counsel appearing for **MACA NO. 1188 OF 2010** **5** the 3rd respondent- insurer. 10. The sole 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.A5 charge-sheet filed by the Kallambalam Police in Crime No.66/1999 clearly proves that the 2[nd] respondent was negligent in causing the accident. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. Therefore, 3[rd] respondent is liable to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Notional income** 12. The appellant had claimed that he was a farmer by profession and earning a monthly income of Rs.3,000/-. Nevertheless, the Tribunal fixed the notional income of the appellant at Rs.2,000/- per month. 13. In **National Insurance Co.Ltd** v. **Khimli Bai** **MACA NO. 1188 OF 2010** **6** **and others** [(2009) 10 SCC 648], the Hon’ble Supreme Court has fixed the notional income of a Carpenter in the year 1997 at Rs.100/- per day. 14. Following the benchmark fixed in the afore-cited decision and taking into account the fact that the appellant was a farmer and the accident happened in the year 1999, I am of the opinion that the appellant’s notional income can safely be fixed at Rs.3,000/- per month. Hence, I re-fix the notional income of the appellant at Rs.3,000/- per month as claimed in the claim petition. ## **Multiplier** 15. As the appellant was aged 60 years at the time of accident, the relevant multiplier is ‘9’ as per the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121]. ## **Disability** 16. Ext.A12 disability certificate produced by the **MACA NO. 1188 OF 2010** **7** appellant proves that his disability was assessed at 17%. However, the appellant did not examine the Doctor to prove Ext.A12. The Tribunal for the said reason, scaled down the disability of the appellant at 11’%. 17. I have re-appreciated Ext.A12 and found that the Doctor has certified that the appellant has persistent post-traumatic headache and post traumatic amnesialoss of memory with a para cervical muscle spasm with in co-ordinated gait. It was in the said circumstances that the Doctor assessed the disability of the appellant at 17%. On going through the said certificate and the injuries that shown in the certificate and keeping in mind the fact that the appellant was a farmer aged 60 years, I am of the considered opinion that the finding of the Tribunal that the appellant has a permanent disability of ‘11’ is correct and justifiable. Therefore, I confirm the finding of the Tribunal with respect to the disability of the appellant assessed at 11%. **MACA NO. 1188 OF 2010** **8** ## **Loss of earnings** 18. In view of the re-fixation of the notional income of the appellant at Rs.3,000/- per month and the fact that he was indisposed for a period of five months, I re-fix the compensation for ‘loss of earnings‘ at Rs.15,000/-. ## **Pain and suffering** 19. In view of the serious injuries that the appellant had sustained and he was treated as an inpatient for a period of 26 days and has suffered a disability of 11%,I am of the opinion that the compensation awarded under the head ‘pain and suffering has to be enhanced by a further amount of Rs.10,000/- i.e, a total amount of Rs.25,000/-. ## **Other heads of compensation** 20. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 21. On a comprehensive re-appreciation of the **MACA NO. 1188 OF 2010** **9** pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [463 x 433] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts modified<br>the Tribunal (in and recalculated by<br>.No rupees) this Court<br>1 Loss of earning 10,000 15,000<br>2. Transport to hospital 2,500 2,500<br>3. Clothing 5,00 500<br>4. Bystander expenses 2,500 2,500<br>5. Extra nourishment 1,500 1,500<br>6. Medical expenses 10,000 10,000<br>7. Pain and suffering 15,000 25,000<br>8. Loss of amenities 10,000 10,000<br>. Loss due to disability 24,000 35,640<br>76,000 1,02,640<br>======= =======<br>**----- End of picture text -----**<br> **MACA NO. 1188 OF 2010** **10** In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.26,640/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit on the enhanced compensation and a cost of Rs.3,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. ma/07.09.2021 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/** P.S to Judge