Saidalavi v. The Managing Director KSRTC & Murali

MACA.No.1363/2013 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 MACA NO.1363 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 634/2008 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL, IRINJALAKUDA_ ## _APPELLANT/PETITIONER:_ _SAIDALAVI, S/O.MOHAMED @ KUNJAN, ONGALLUR HOUSE, KOTTOPADOM P.O & DESOM, MANNARCAD TALUK, PALAKKAD DISTRICT._ _BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH_ ## _RESPONDENTS/RESPONDENTS:_ _1 THE MANAGING DIRECTOR, KSRTC, TRIVANDRUM-695 002._ _2 MURALI, S/O.IMBICHEETTY, MANGASSERY THAZHATH HOUSE, NALLOOR, FAROK P.O., KOZHIKODE-673 632._ _BY ADV.ALEX ANTONY SEBASTIAN P.A._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1363/2013 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).634 of 2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 26.06.2007. 2. The accident occurred when the motorcycle ridden by the appellant along with the petitioner in O.P.(MV).No.635 of 2008 as a pillion rider, it was hit by a KSRTC bus, driven by the 2nd respondent in the claim petition. The 1st respondent is the Managing Director, KSRTC, the owner of the bus. The appellant was 25 years old at the time of the accident and was working as a construction worker with a monthly income of Rs.6,000/-. Consequent to the injuries, he claimed to have sustained very serious injuries, which resulted in permanent partial disablement in a substantial manner. The claim petition was submitted in such circumstances seeking compensation. 3. The respondents filed a written statement denying the negligence on the part of the 2nd respondent. According to them, the accident occurred due to the negligence of the MACA.No.1363/2013 3 appellant himself. The quantum of compensation was also seriously disputed by them. 4. To substantiate the contentions, the appellant got himself examined as PW1 and the doctor who issued the disability certificate was examined as PW2. As documentary evidence, Exts.A1 to A19 were marked from the side of the appellant. No evidence was adduced by the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2nd respondent. Being the employer and the owner of the bus, the 1st respondent was, therefore, held liable to pay the compensation. The quantum of compensation was determined as Rs.4,54,730/-, which was to be recovered from the 1st respondent with interest at the rate of 7.5% per annum from the date of petition till realization. This appeal is submitted in such circumstances by the appellant seeking enhancement of compensation. 5. Heard Sri.P.V.Baby, learned counsel for the appellant and Sri.Alex Antony Sebastian P.A., learned standing counsel for the KSRTC. MACA.No.1363/2013 4 6. The only question that arises for consideration is whether any enhancement of compensation, as sought in the appeal, is to be granted or not. The learned counsel for the appellant submits that the amount awarded by the Tribunal is grossly inadequate. The learned standing counsel appearing for the 1st respondent opposes the said contention by highlighting that a reasonable amount has been awarded and no interference is required. 7. The first contention raised by the learned counsel for the appellant relates to the compensation awarded for disability. In this regard, the first aspect to be considered is the monthly income. Even though Rs.6,000/- was claimed, the Tribunal took the monthly income as Rs.2,500/-, which appears to be on the lower side considering the fact that the accident occurred in the year 2007. It is to be noted that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236] the** Honourable Supreme Court was pleased to took the monthly income of an ordinary worker, even without any evidence, as Rs.4,500/- for the year 2004. In this case, to substantiate the monthly income, the appellant placed MACA.No.1363/2013 5 reliance upon Ext.A15 salary certificate, wherein his remuneration was shown as Rs.200/- per day. Therefore, the monthly income would come to Rs.5,200/-; i.e., 200 x 26. In the light of the principles laid down in **Ramachandrappa (supra),** the monthly income of Rs.5,200/- appears to be reasonable and therefore, I do not find any justification in discarding the said amount. 8. The next element for assessing the compensation for disability is the percentage of disability sustained. To substantiate the same, the Ext.A12 disability certificate was relied on, and the doctor who issued the said certificate was examined as PW2. On going through the Ext.A12 disability certificate, it can be seen that a detailed discussion of the injuries sustained, the treatment availed by him and the consequences of such injuries are clearly mentioned therein. The consequences of such injuries, as far as the mental functions, nerve function, spin motor system functions etc., are clearly described therein, which are as follows: ## “ - Higher mental functions He has disturbance in cognitive function. He has lack of orientation in time and place. His attention span MACA.No.1363/2013 6 is impaired. His concentrating ability is reduced. He has impairment in long-term memory. His word output is reduced and with decreased fluency. He has emotional disturbances with episodes of irritability, depression and euphoria. ## Central nerves functions- He has right facial palsy with uncontrollable twitching of facial musculature (Tics) on the right side of face. This is associated with disturbances in speech, increased while chewing and increased considerably to the level of embarrassment in situations of emotional disturbances. He has slurred speech due to lower cranial nerve palsies that occurred because of brain stem injury. This causes a slow drunken kind of speech. He has difficulty in deglutition (swallowing) also because of his lower cranial palsies and adherent tracheotomy scar. - Spinomotor system functions He has Right hemi paresis with increased tone and brisk deep tendon reflexes on the right limbs. His upper limb disability is more than lower limbs. Due to this he is unable to carry out his occupation of construction work, which requires both gross motor and fine motor control of activity. He has difficulty in walking briskly and in running or climbing up steps and slopes or a ladder. He has mild ataxia due to the right hemi paresis. He is on antiepileptic medications for control of epilepsy and the risk of epilepsy is lifelong for him. Hence, he needs to continue his antipileptic medicines for lifelong. This also MACA.No.1363/2013 7 adversely affects his occupation as a skilled construction worker.” 9. On the basis of the above, the percentage of physical disability was certified as 54.44% and loss of earning capacity was assessed as 80%. In the said certificate, it was also mentioned that the appellant is incapacitated to do the work of a construction worker which was his avocation. The contents of Ext.A12 was proved properly by the doctor, who was examined as PW2. No serious challenge is seen raised against his testimony. The details of the consequences of the injuries as mentioned above would certainly indicate the pathetic situation of the appellant and it is almost certain that it may not be possible for him to carryout any employment effectively. This is particularly because, the impact of the injuries is not only confined to the physical incapacity but also to the mental capabilities of the appellant in comprehending situations and to react promptly to such situation. Therefore, as rightly pointed out by the learned counsel for the appellant, this is a case in which the functional disability of a higher level to be taken. However, the Tribunal accepted the physical disability which is certified in Ext.A12, which was 54.44%. MACA.No.1363/2013 8 10. Of course, it is true that the loss of earning capacity was certified as 80%. In Ext.A12, it is also stated that he could not pursue the avocation of the contract worker. Considering the serious nature of injuries, the disability arising therefrom, and the impact that can have upon his earning capacity, I am of the view that a higher percentage of functional disability has to be taken, and I deem it appropriate to fix it as 90% in the peculiar facts and circumstances of the case. As the appellant sustained very serious disabilities, which particularly prevented him from pursuing any sort of employment in the ordinary course, future prospects should also be taken into account while assessing the compensation for disability. 11. In the light of **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** addition of 40% of the monthly income has to be made as the appellant was aged 25 years at the time of the accident. Thus, while re-assessing the compensation with the above revised criteria, the amount to be awarded for disability would be Rs.14,15,232/[(5200+40%)x12x18x90/100]. Amount already awarded by the MACA.No.1363/2013 9 Tribunal is Rs.2,91,600/- and thus the additional compensation would be Rs.11,23,632/-. 12. No compensation was granted by the Tribunal towards loss of earnings. Evidently, he was incapacitated to carry out any employment. The learned counsel for the 1st respondent would contend that since the percentage of disability was taken, as high as 90%, no separate compensation for loss of earnings is necessary. I am not inclined to accept the said contention, in view of the fact that even if the compensation for disability is granted at a high percentage of disability, a notional amount has to be granted for loss of earnings. In such circumstances, I deem it appropriate to grant the said compensation for a period of six months. Thus, the amount would come to Rs.31,200/- (5200x6). 13. Another head which requires consideration is the bystander expenses. The Tribunal awarded only Rs.5,200/towards the same. The appellant had undergone inpatient treatment for a total period of 82 days at two spells. Considering the fact that the accident occurred in the year 2007, I deem it appropriate to grant the compensation under MACA.No.1363/2013 10 this head at the rate of Rs.150/- per day and accordingly, this would result in an additional compensation of Rs.7,100/[(150x82)-5200]. 14. Another head which was highlighted by the learned counsel for the appellant is pain and suffering. The amount awarded by the Tribunal is Rs.20,000/-. It was pointed out by the learned counsel for the appellant that in **Lalan D @ Lal v.** **The Oriental Insurance Company Ltd. [(2020) 9 SCC 805]** the Honourable Supreme Court was granted an amount of Rs.3,00,000/- as pain and suffering. However, after considering the factual circumstances existing in this case, I deem it appropriate to fix it as Rs.1,50,000/- and after deducting Rs.20,000/- already awarded, a further sum of Rs.1,30,000/- is granted for pain and suffering. No amount is seen granted towards the loss of amenities. The Tribunal took the view that since a substantial amount has been granted towards loss of earning power, only a notional amounts need to be granted under the said head. In the facts and circumstances of the case, an amount of Rs.25,000/- is awarded for loss of amenities. MACA.No.1363/2013 11 15. The next contention raised by the learned counsel for the appellant is future treatment expenses. In connection with this, the learned counsel for the appellant places reliance upon the observations in Ext.A12 disability certificate, wherein it was mentioned that, he has been undergoing regular follow-up at Moulana Hospital, Perinthalmanna since then. He is on antiepileptic medications and physiotherapy, which needs to be continued for life long. Therefore, it is pointed out that he is incurring expenses for availing physiotherapy and other treatments, which he has to continue for his lifetime, and hence a further sum has to be awarded for this. He also placed reliance upon on **Abhimanyu Pratap Singh v. Namita Sekhon & Another [(2022) 8 SCC 489],** wherein an amount of Rs.9,72,000/- has been awarded in similar circumstances. The fact that the appellant requires physiotherapy and consume anti-epileptic medications throughout his life is evident from Ext.A12, which was proved by PW2. Therefore, a reasonable amount has to be granted for the said purpose. Accordingly, I deem it appropriate to grant an amount of Rs.5,00,000/- under the said head. Thus, the total additional MACA.No.1363/2013 12 compensation is determined as Rs.18,16,932/[1123632+31200+7100+130000+25000+500000]. In the result, this appeal is allowed. The award dated 08.03.2013 passed by the Motor Accidents Claims Tribunal, Irinjalakuda is hereby modified by granting an additional compensation of Rs.18,16,932/- (Rupees eighteen lakhs sixteen thousand nine hundred and thirty two only). Out of the said amount, Rs.13,16,932/- (Rupees thirteen lakhs sixteen thousand nine hundred and thirty two only) will carry interest at the rate as ordered by the Tribunal from the date of petition till realization. As far as the amount of Rs.5,00,000/- (Rupees five lakhs only) awarded towards future treatment expenses is concerned, the same will carry interest from the date of award passed by the Tribunal. The said amounts shall be recoverable from the 1[st] respondent. Sd/- ## **ZIYAD RAHMAN A.A.** ## **JUDGE** DG/2.2.24