Sajilal T.S. v. Mohanan & KSRTC

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 27TH DAY OF JUNE 2017 / 6TH ASHADHA, 1939** **-------------------------AGAINST THE AWARD IN OP(MV) 1411/1998 of M.A.C.T., KOTTAYAM, DATED 22-09-2003** ## **APPELLANT/CLAIMANT** **SAJILAL.T.S., S/O.SASIDHARAN, THAZHACHAYIL, NEAR Y.M.A., KURICHY, CHANGANACHERRY.** **BY ADV.SRI.LIJI.J.VADAKEDOM** ## **RESPONDENT(S)/RESPONDENTS:** **1. MOHANAN, S/O. MADHAVAN, KARIMATTATHU HOUSE, MANNANAM, ATHIRAMPUZHA.** **2. MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM.** **R2 BY ADV. SRI.JOY GEORGE, SC, K.S.R.T.C. R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC R2 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. R2 BY ADV. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** ## **-----------------------------------------------** M.A.C.A.No.724 of 2006 **-----------------------------------------------** Dated this the 27[th] day of June, 2017 ## **J U D G M E N T** ## Ravikumar, J. The injured appellant comes up in appeal on being aggrieved by and dissatisfied with the quantum of compensation granted as per the award in O.P.(MV)No.1411/1998 passed by the Motor Accidents Claims Tribunal, Kottayam. He filed the said claim petition under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 18.6.1998 which resulted in permanent disability. On that day, he was travelling as a pillion rider on the motor bike bearing registration No.KCT6805. It was knocked down by a KSRTC bus bearing registration No.KL-15/3064, driven by the 1[st] respondent. On sustaining injuries, he was taken to Medical College Hospital, Kottayam and he remained there as an inpatient for a period of 19 days. The claim petition was filed seeking a total compensation of `3,08,000/- and the Tribunal as per the impugned award, granted M.A.C.A.No.724 of 2006 :-2-: a total compensation of `1,27,750/- with interest @ 9% per annum from the date of petition till realisation. As noticed hereinbefore, it is seeking enhancement of compensation that the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellant and the learned counsel appearing for the 2[nd] respondent. 3. It is evident from the rival submissions that there is no dispute regarding the accident, the cause of accident as the negligence on the part of the 1[st] respondent, the driver of the offending vehicle and also the vicarious liability of the 2[nd] respondent to compensate the petitioner. Thus, the sole question to be considered is whether the appellant is entitled to get enhanced the compensation. 4. The learned counsel for the appellant submitted that disregarding the averments made in the claim petition that the appellant was a toddy worker and was earning `3,500/-, the Tribunal had notionally fixed the monthly income, that too, as `1,500/-. That apart, it is contended that the compensation granted under the heads 'loss of amenities' and 'pain and suffering' are on the lower side. Though the appellant remained as an inpatient for a period of 19 days, the Tribunal had not M.A.C.A.No.724 of 2006 :-3-: granted any amount towards 'extra nourishment', it is contended. It is further contended that the Tribunal had granted only a meagre amount towards 'transportation expenses' and 'bystander expenses'. Learned counsel for the 2[nd] respondent submitted that the appellant had failed to establish his pleadings regarding the occupation and income and in such circumstance, the Tribunal was right in fixing the monthly income notionally. Taking note of the fact that the accident had occurred in the year 1998, the notional fixation of the monthly income as `1,500/- also cannot be said to be on the lower side, it is further submitted. In short, it is the contention that no appellate interference is called for. 5. We heard the rival submissions. 6. Having given anxious consideration to the submissions of counsel on both sides, we are of the view that the impugned judgment invites interference. It is true that the appellant had failed to establish his averments regarding the occupation and income. In such circumstance, it can only be said that the Tribunal has rightly fixed the monthly income notionally for calculation purposes. At the same time, the question is whether the fixation of the monthly income notionally as `1,500/- invites any interference. The accident had occurred on 18.6.1998 and M.A.C.A.No.724 of 2006 :-4-: the appellant was then aged 21 years. The Honourable Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236]** had fixed the monthly income of a coolie, who met with an accident in the year 2004, as `4,500/-, for calculation purpose. True that the accident in question had occurred about 6 years prior to the accident involved in the case cited supra. Taking the decision in **Ramachandrappa** for guidance, we are inclined to fix the monthly income of the appellant as `2,500/- for calculation purpose. It is accordingly fixed. With reference to the age of the appellant at the time of the accident, the Tribunal had adopted the multiplier as '17'. In view of the schedule given in the decision reported in **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802]** , the correct multiplier applicable in this case, with reference to the age of the appellant, is '18'. The learned counsel for the appellant contended that the Tribunal had incorrectly assessed the extent of permanent disability. Ext.A7 would reveal that the permanent disability of the appellant was assessed as 45%. The Tribunal had taken only 25% as the extent of permanent disability, for calculation purpose. Ext.A7 is only a copy of the certificate issued to the M.A.C.A.No.724 of 2006 :-5-: petitioner by a Medical Board. Admittedly, the original of the same was not produced before the Tribunal. That apart, it cannot be said that it was the certificate issued, after assessing the extent of disability in respect of the accident, by a duly constituted Medical Board, on being referred to do so by the Tribunal. That apart, the Tribunal had the opportunity to see the appellant and the said fact is evident from the impugned judgment itself. Evidently, the Tribunal had also considered Ext.A7. The disinclination shown by the Tribunal in accepting the entire percentage of disability certified under Ext.A7 cannot be said to be an error or illegality in the aforesaid circumstances. In that context it is to be noted that, what was produced before the Tribunal was only a copy of the disability certificate. In the said circumstances, we do not find any reason to interfere with the assessment of permanent disability made by the Tribunal. In view of the re-fixation of the multiplicand as also the multiplier, the compensation for permanent disability has to be re-assessed. On such re-assessment, the appellant would be entitled to get an amount of `1,35,000/- (2,500x12x18x25/100). The Tribunal had already granted an amount of `76,500/- under that head. After deducting the said amount, the appellant would be entitled to get M.A.C.A.No.724 of 2006 :-6-: an amount of ` **58,500** /- additionally under the head compensation for permanent disability. It is granted. 7. Though the appellant had been an inpatient for a period of 19 days, the Tribunal had not granted any amount towards expenses for 'extra nourishment'. Taking into account the year of the accident and the cost of living at that point of time, we are inclined to grant an amount of ` **1,900** /-, viz., at the rate of `100/per day. 8. Towards 'bystander's expenses', the Tribunal had granted only an amount of `1,500/-. Taking into account the number of days of hospitalisation, we are inclined to grant a sum of ` **400** /- more under that head. 9. Evidently in the accident, the appellant had sustained type III common fracture on both bones of the right leg. It is therefore evident that the appellant must have had reviews after the initial admission and discharge. In such circumstance, we are inclined to grant a sum of ` **500** /- more towards 'transportation expenses'. 10. There cannot be any doubt with respect to the position that after granting compensation for 'permanent disability', an injured/claimant ought not to have been granted compensation M.A.C.A.No.724 of 2006 :-7-: for 'loss of earning power'. This is because 'permanent disability' is a common factor for assessing compensation under the said head. The Tribunal had already granted `15,000/- towards 'loss of earning power' after granting compensation for disability. At the same time, on perusing the impugned award, it is seen that the Tribunal has not granted adequate compensation under the heads 'loss of amenities' and compensation for 'pain and suffering'. As against the claim of `40,000/- towards 'pain and suffering', the Tribunal has granted only an amount of `15,000/-. Towards 'loss of amenities', only an amount of `10,000/- was granted. We are of the view that the appellant is entitled to get an amount of `20,000/- as compensation for 'pain and suffering' and an amount of `25,000/- towards 'loss of amenities'. Though the appellant is entitled to get an additional amount of `5,000/- (20,000-15,000) towards compensation for 'pain and suffering' and another sum of `15,000/- (25,000-10,000) towards 'loss of amenities', we are of the view that the compensation granted towards 'loss of earning power' by the Tribunal, can be adjusted against the inadequate compensation granted under the aforesaid heads. Hence, after deducting the sum of `15,000/- granted by the Tribunal towards 'loss of earning power', the appellant would be entitled to get a M.A.C.A.No.724 of 2006 :-8-: ## sum of ` **5,000** /- additionally. In view of the assessment and enhancement made by us on the aforesaid heads, the appellant is entitled to a total additional compensation of ` **66,300** /- (58,500+1,900+400+ 500+5,000). It is awarded. As per the order passed by this Court in C.M.A.No.838/2006 dated 3.2.2016, the appellant is entitled to get interest only from 5.11.2008 onwards. In the said circumstance, the appellant would be entitled to get interest for the additional compensation only from 5.11.2008 onwards till realisation. The said additional compensation will carry interest at the rate of 8% per annum from 5.11.2008 onwards till realisation. The 2[nd] respondent is directed to deposit the said amount along with interest thereof within a period of two months from the date of receipt of a certified copy of this judgment. No order as to costs. Sd/- **JUDGE** ## **C.T.RAVIKUMAR** Sd/- **ANIL K.NARENDRAN JUDGE** ami/28.6.17 //True copy// P.A.to Judge