Sajeev v The Managing Director, KSRTC & Ors

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 ``` ``` MACA NO. 1148 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 1752/2009 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL ,KOLLAM ``` ## **`APPELLANT/PETITIONER:`** ``` SAJEEV AGED 33 YEARS, S/O. APPUKUTTAN PILLAI, VELLUCHIRA PUTHEN VEEDU, FROM VALUVILA VEEDU, KOTTAMKARACHERY, KOLLAM. BY ADV SRI.C.RAJENDRAN ``` ## **`RESPONDENTS:`** |`1`|`THE MANAGING DIRECTOR`| |---|---| ||`K.S.R.T.C,`| ||`THIRUVANANTHAPURAM -695 001.`| |`2`|`A. DILSHADU SO. ABDUL KHADER`| ||`SAFIA MANDIRAM, AJMAL,`| ||`PEROOR, KOLLAM - 691 001.`| |`3`|`THE BRANCH MANAGER`| ||`THE NEW INDIA INSURANCE COMPANY LIMITED,`| ||`THIRUVANANTHAPURAM - 695 001.`| ||`BY ADVS.`| ||`ALEX ANTONY SEBASTIAN P.A.`| ||`P.K.BABU`| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1148 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** ``` The appellant was the petitioner in O.P.(MV) No.1752 of 2009 on the files of the Motor Accidents Claims Tribunal. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 15.11.2009. ``` ``` 2.According to him, the accident occurred when he was travelling as a pillion rider on a motorcycle, it was hit by a KSRTC bus driven by the 2nd respondent in a rash and negligent manner. Consequent to the same, the appellant sustained serious injuries. The 1st respondent was the Managing Director, KSRTC and the said vehicle was insured with the 3rd respondent. According to the appellant, he was working as an electrician abroad with a monthly income of Rs.14,000/-. According to him, he sustained serious injuries and physical disablement, consequent to the accident. The claim petition was submitted in such circumstances. ``` ``` MACA NO. 1148 OF 2013 ``` ``` 3 ``` ``` 3.The 1st and 2nd respondents filed written statements contending that the accident occurred due to the negligence of the rider of the motorcycle. They disputed the quantum of compensation as well. The 3rd respondent/insurer filed written statement admitting the coverage of policy for the vehicle, however, they disputed the negligence and the quantum of compensation. ``` ``` 4.The evidence in this case consists of oral testimony of PW1 and as documentary evidence Exts.A1 to A16 were marked. The disability certificate was marked as Ext.C1. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2nd respondent in driving the bus and being the insurer, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed at Rs.2,32,500/-, and the said amount was directed to be deposited by the 3[rd] respondent with interest at ``` ``` MACA NO. 1148 OF 2013 ``` ``` 4 ``` ``` the rate of 7.5% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation. ``` ``` 5.Heard Smt.Sreevidya R.S., learned counsel for the appellant, Sri.Alex Antony Sebastian P.A., learned standing counsel for the 1st respondent and Sri.P.K.Babu, learned counsel for the 3rd respondent. ``` ``` 6.The only dispute in this case relates to the quantum of compensation. The learned counsel for the appellant points out that the amount awarded by the Tribunal under various heads, particularly under the head of disability, were grossly inadequate. The learned counsel for the 1st respondent would oppose the said contention by pointing out that a reasonable amount has been awarded and no interference is required. ``` ``` 7.On perusal of the records, I find some force in the contention of the learned counsel for the appellant. First of all, it is to be noted that even though the Ext.C1 disability certificate issued by ``` ``` MACA NO. 1148 OF 2013 ``` ``` 5 ``` ``` the Medical Board was marked, wherein 18% disability was certified, the Tribunal scaled down the same as 8%. The injuries sustained by the appellant, as evidencedbyExt.A6,areasfollows: ``` - _`“ 1. deformity of right arm.`_ _`2. Deformity with swelling right knee.`_ _`3. Lacerated injury 3 x 1 cm right hand.`_ _`4. Lacerated injury right thigh 4 x 1 cm.`_ _`5. X-ray shown fracture right tibia.`_ _`6. Fracture of the right humerus.`_ _`7. Fracture right Ulna.”`_ ``` 8.The Medical Board assessed the disability as 18% after evaluating the consequences of the said injuries in the day-to-day life of the appellant. Since the Medical Board issued the same, the Tribunal should not have scaled down the percentage of disability certified therein unless there were any discrepancies requiring such reduction. In this case, on going through the nature of injuries as referred ``` ``` MACA NO. 1148 OF 2013 ``` ``` 6 ``` ``` to above and the contents of the certificate, I am unable to find any discrepancies warranting such a reduction. Therefore, I deem it appropriate to accept the percentage of disability certified in Ext.C1, which is 18%, for the purpose of assessing the compensation. ``` ``` 9.The next aspect relates to the monthly income. The learned counsel for the appellant contends that the appellant was earning Rs.14,000/- from his avocation as an electrician abroad. Ext.A13 is the experience certificate issued by one Awathi Electricals. Besides the same, he also relies on Ext.A14 copy of the passport, Ext A15 electronic ticket in the name of the petitioner for travelling abroad and Ext A16 money transfer form, which shows three transactions, by which he transferred some amounts from abroad. However, Ext.A16 contains three transactions of Rs.25,000/-, Rs.22,000/- and Rs.13,000/-, which are spread over for more than one year. Therefore, the same cannot be accepted as such, ``` ``` MACA NO. 1148 OF 2013 ``` ``` 7 ``` ``` for the purpose of assessment of monthly income. However, it is to be noted that when the normal method of computation of monthly income evolved from Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd .[2011 (13) SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Co. [2014 (2) SCC 735] is taken into consideration, the monthly income of an ordinary worker, even without any evidence, can be taken as Rs.4,500/- for the year 2004. For determining the monthly income for the subsequent years, the usual method that is being adopted is to add Rs.500/- per year. When such a method is adopted, monthly income for the year 2009 can be taken as Rs.7,000/-, which is the monthly income accepted by the Tribunal. However, the records would indicate that he was working as an electrician and, therefore, a skilled employee. Hence, a slightly higher monthly income could be taken. The fact that the Ext.A14 and A15 would indicate that he was working abroad is also a relevant aspect to be ``` ``` MACA NO. 1148 OF 2013 ``` ``` 8 ``` ``` considered while assessing the monthly income. Thus in the facts and circumstances of the case, I deem it appropriate to fix the monthly income as Rs.9,000/-. Accordingly, when the compensation for disability is reassessed by taking the monthly income as Rs.9,000/- and the percentage of disability as 18%, the amount payable under this head would come to Rs.3,30,480/- (9000x12x17x18/100). The amount already awarded by the Tribunal is Rs.1,14,240/- and thus, the additional compensation would come to Rs.2,16,240/-. ``` ``` 10.Besides the same, taking note of the injuries as referred to above and the period of treatment, which includes 10 days of inpatient treatment and the treatment after his discharge, I deem it appropriate to grant a further sum of Rs.10,000/- towards compensation for pain and sufferings, as Rs.25,000/- awarded under this head by the Tribunal appears to be on the lower side. Similarly, no amount is awarded towards the loss of amenities even though the appellant sustained the ``` ``` MACA NO. 1148 OF 2013 ``` ``` 9 ``` ``` injuries and physical disablement. Considering the fact that the appellant sustained such serious injuries and disabilities at the young age of thirty years, certainly, a reasonable amount has to be granted for the loss of amenities. In the facts and circumstances of the case, I deem it appropriate to grant a sum of Rs.25,000/- under this head. Thus, the total additional compensation is determined as Rs.2,51,240/- (216240 + 10000+ 25000). ``` ``` In the result, this appeal is allowed. The award dated 05/03/2012, passed by the Motor Accident Claims Tribunal, Kollam in OP(MV) 1752/2009 is hereby modified by granting an additional compensation of Rs.2,51,240/- (Rupees two lakhs fifty one thousand two hundred and forty only) and the said amount shall be deposited by the 3rd respondent Insurance Company with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of copy of this judgment. However, it is clarified that, as the ``` ``` MACA NO. 1148 OF 2013 ``` ``` 10 ``` ``` appeal was filed with a petition to condone the delay of 311 days, the 3rd respondent shall be entitled to exclude the said period while computing the interest on the additional compensation. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` DG/sms ```