Santoshkumar K.S. and others v. Aneesh T.K. and others, MACA.3068/2017

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 ``` ``` M.A.C.A. NO.3068OF 2017 ``` ``` CLAIMS TRIBUNAL, KOTTAYAM) ``` ## `APPELLANTS:` ``` 1SANTHOSHKUMAR K.S, AGED 47 YEARS, (DIED) S/O.SREEDHARAN, AGED 47, MANIMANDIRAM, CHANNANIKKADU P.O., KOTTAYAM. (ADDITONAL APPELLANTS 2 TO 4 IMPLEADED) 2KRISHNAKUMARI SANTHOSHKUMAR, AGED 46 YEARS, W/O.SANTHOSHKUMAR K.S., KILAPARAMPILAYA MANIMANDIRAM, PANACHIKADU, CHANNANIKADU, KOTTAYAM-686 533. 3AKHILA K. SANTHOSH, AGED 19 YEARS, D/O.SANTHOSHKUMAR K.S., KILAPARAMPILAYA MANIMANDIRAM, PANACHIKADU, CHANNANIKADU, KOTTAYAM-686 533. 4ANAKHA K.SANTHOSH, AGED 14 YEARS, MINOR REPRESENTED BY HER MOTHER KRISHNAKUMARI SANTHOSHKUMAR, AGED 46 YEARS, W/O.SANTHOSHKUMAR K.S., KILAPARAMPILAYA MANIMANDIRAM, PANACHIKADU, CHANNANIKKADU, KOTTAYAM-686 533. (ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED AS PER ORDER DATED 17.11.2023 IN I.A.No.1 of 2023 IN MACA 3068/2017) ``` ``` BY ADVS. SRI.MATHEWS K.PHILIP SMT.MINISHA K DAS ``` ``` RESPONDENTS: ``` ``` 1ANEESH T.K, PUTHENPARAMBIL HOUSE, VALADI, NEELAMPEROOR P.O., KUTTANAD TALUK, ALAPPUZHA. ``` 2 ## _MACA.3068/2017_ - `2 THE DIVISIONAL MANAGER, M/S.UNITED INDIA INSURANCE COMPANY LIMITED, KOTTAYAM.` - `3 KAMALASANAN, VEERAMPAKKKAL HOUSE, CHERUKARA, NEELAMPEROOR P.O., KUTTANAD, ALAPPUZHA DISTRICT.` - `4 RADHAMONY, W/O. KAMALASANAN, VEERAMPAKKKAL HOUSE, CHERUKARA, NEELAMPEROOR P.O., KUTTANAD, ALAPPUZHA.` ``` BY ADV P.K.MANOJKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 _MACA.3068/2017_ ## JUDGMENT (Dated: 6[th] December, 2023) This Motor Accidents Claim Appeal is filed by the appellant who is the petitioner in O.P.(MV)No.714 of 2015 on the file of the Motor Accidents Claims Tribunal, Kottayam. The appeal is filed claiming enhancement of compensation on various heads. 2. Brief facts of the case are as follows: On 09.03.2015, while the appellant/petitioner was travelling in a KSRTC bus bearing Reg.No.KL- 15/8295 through Changanacherry – Kottayam MC road and when it reached Cheruvallipadi, Kurichy Village, another bus named ‘Chippy’ driven by the 1[st] respondent, came from the opposite direction, hit on the back right side corner of the KSRTC bus where the petitioner was seated and due the impact he sustained grievous injuries. Due to the injuries, the petitioner was hospitalised and treated. He claimed Rs.90,00,000/- as compensation with interest and costs. 4 _MACA.3068/2017_ 3. The 1[st] respondent entered appearance but did not file any written statement. The 2[nd] respondent died during the pendency of the original petition, and therefore additional respondents 4 and 5 were impleaded. They filed a written statement contending that the petition is not maintainable and that the claim put forward in column No.25 is excessive. It is also contended that the KSRTC bus while trying to overtake a mini lorry in a rash and negligent manner and the bus suddenly turned to the left side on seeing the offending bus coming from the opposite direction, hit on the back right corner of the bus and therefore the accident happened due to the sole rash and negligence of the driver of the KSRTC bus. 4. The 3[rd] respondent filed a written statement in tune with the written statement filed by respondents 4 and 5. It is also contended by the counsel for the respondent that it is a collusive claim and therefore they may be permitted to contest the claim under Section 170 of the M.V. Act on all the grounds. The Tribunal relying on Exts.A1 to A28 and 5 _MACA.3068/2017_ X1 disability certificate awarded a total compensation of Rs.6,15,550/with 8% interest per annum from the date of petition till the date of realisation. Aggrieved by the amount of compensation awarded, this appeal is filed. 5. The original appellant died during the pendency of the appeal on 11.12.2019 and the legal heirs are additional appellant Nos.2 to 4, who are wife and children. I.A.No.1 of 2023 was filed for impleading the additional appellants, and it was allowed as per order dated 17.11.2023. 6. Heard Sri.Mathews K.Philip, learned counsel for the appellants, and Adv.P.K.Manojkumar, Standing Counsel for the 2[nd] respondent/Insurance Company. 7. The learned counsel for the appellants Sri.Mathews K.Philip contended that the Tribunal was not justified in taking the notional income at Rs.8,000/-, for calculating the permanent disability. It is true that the petitioner was employed as Civil Police Officer and his monthly 6 _MACA.3068/2017_ income after the deduction of the income tax is Rs.27,615/-. The disability certificate produced shows that he was assessed a disability of 50% on the basis of the Mc Bride Scale. He relies on the decision of this Court in _Raju Sebastian v. United India Insurance Company Ltd., (2021 (5) KHC 662)_ to contend for the proposition that a Government servant after his age of retirement would be earning some income taking employment after retirement. This Court in the said decision has taken the probable monthly income after retirement as 50% of the income at the time of service and calculated compensation for permanent disability. Taking the said yardstick, it is seen that, the petitioner was earning Rs.27,615/- at the time of the accident and therefore 50% of the amount would come to Rs.13,807.5/- and the multiplier to be adopted for a person between the age group 56-60 is 9. Hence, the disability compensation of post-retirement can be calculated as: 13,807.5x12x9x50/100 = 7,45,605/-. For the loss of an artificial limb, though the petitioner claimed Rs.20,00,000/-, an amount 7 _MACA.3068/2017_ of Rs.1,00,000/- is awarded under the head of future treatment. So, no separate amount is awarded in this appeal. In the absence of any other evidence regarding the change of artificial limb, I am satisfied that the Tribunal was justified in awarding Rs.1,00,000/- for future treatment expenses. Accordingly, the following enhancements are made to the award passed by the Tribunal: |_Sl. No._|_Head of Claim_|_Amt. Awarded_<br>_by Tribunal (Rs.)_|_Amt. enhanced_<br>_in appeal (Rs.)_| |---|---|---|---| |_1._|_Loss of_<br>_permanent_<br>_disability_|_1,44,000/-_|_7,45,605/-_| ||_Total_|_1,44,000/-_|_7,45,605/-_| ||_Amount enhanced = 7,45,605 – 1,44,000 =_<br>_6,01,605/-_||| In the result, the appeal is allowed, and the additional appellants are entitled to an enhanced compensation of Rs.6,01,605/- (Rupees Six 8 _MACA.3068/2017_ lakh one thousand six hundred and five only) with 8% interest from the date of the petition till realisation. If any amounts have already been paid, the same shall be granted set off. The compensation shall be apportioned in the ratio of 40:30:30 among the additional appellants. The amount due to the additional appellant No.4 shall be deposited in a nationalized bank in her name and allowed to be withdrawn on her attaining the age of 18 years. The insurance company shall produce the cheque for the amount due to additional appellant No.2 for immediate release. The amount due to the 3[rd] appellant shall also be deposited in a nationalized bank in her name for a period of 3 years. All other findings entered by the Tribunal stand confirmed. The additional appellants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not 9 _MACA.3068/2017_ furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. The appeal is allowed. _Sd/-_ BASANT BALAJI, JUDGE ss 10 _MACA.3068/2017_