Saraswathy v. Managing Director, KSRTC & P.V. Saji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 MACA.No. 3105 of 2008(G) ----------------------OPMV.137/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT : PETITIONER -------------- SARASWATHY, 48 YEARS, W/O.KRISHNANKUTTY, KALLUVAYAL HOUSE, NEERVARAM POST., PANAMARAM VILLAGE, WAYANAD. BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR) RESPONDENTS: --------------- 1. MANAGING DIRECTOR, KSRTC, THIRUVANANTHAPURAM (OWNER OF KSRTC BUS NO.KL-15/2682) 2. P.V.SAJI, S/O.VARKEY VARGHESE, PUTHIKKAMALIL VEEDU, VIMALA NAGAR, THAVINJAL, MANANTHAVADY, WAYANAD (DRIVER OF KSRTC BUS NO.KL-15/2682, ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. ************************* ## **M.A.C.A No.3105 of 2008-G ******************************* Dated this the 2[nd] day of September, 2011 ## **JUDGMENT** ## BASANT, J. Claimant is the appellant. She claimed compensation for injuries suffered by her in a motor accident which took place on 07.01.2000. She was aged 40 years. She claimed to be a coolie earning an income of Rs.2,500/- per mensem. She was an inpatient for a period of 26 days. She has suffered crush injuries on the left foot. Below knee amputation was undertaken. The medical Board, to which the claimant was referred, certified the disability to be 60%. The appellant claimed an amount of Rs.3 lakhs as compensation. The Tribunal, by the impugned award directed payment of an amount of Rs.1,10,900/- as per the details given below: |**_Sl.No._**|**_Head of awards_**|**_Amount awarded_**| |---|---|---| |1|Loss of income|Rs. 3,000.00| |2|Transportation|Rs. 600.00| |3|Extra nourishment|Rs. 600.00| |4|Damage to clothing and articles|Rs. 500.00| |5|Bystander's expenses|Rs. 500.00| |6|Treatment and medicine|Rs. 700.00| 2 **M.A.C.A No.3105 of 2008-G** |**_Sl.No._**|**_Head of awards_**|**_Amount awarded_**| |---|---|---| |7|Pain and suffering|Rs. 5,000.00| |8|Continuing disability & loss of earning<br>power|Rs.1,00,000.00| ||**Total**|**Rs.1,10,900.00**| 2. We have heard the learned counsel for the appellant. There is no representation for the respondent when the matter came up for hearing. The learned counsel for the appellant challenges the impugned award on the short ground that the quantum of compensation awarded is grossly inadequate. 3. Called upon to explain and be specific, the learned counsel for the appellant submits that the Tribunal had erred grossly in reckoning the monthly income as Rs.1,800/- only. The appellant is a housewife, who was also working and earns livelihood by her employment as a coolie. She had claimed an amount of Rs.2,500/- to be her monthly income. The Tribunal should, at any rate, have accepted that assertion, argues the learned counsel. In this context, the learned counsel for the appellant relies on the presumption available under clause 6 of the Second Schedule of the Motor Vehicles Act from 1994. The learned counsel also relies on the decisions in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218] and **Laxmi Devi & Ors. V.** **M.A.C.A No.3105 of 2008-G** 3 **Mohammad Tabbar & Anr.** [2008 ACJ 1488]. We are satisfied completely that an amount of Rs.2,500/- can safely be reckoned as her monthly income as claimed by her. 4. The Tribunal, after entering a finding that her monthly income is Rs.1,800/- and has awarded an amount of Rs.3,000/- as loss of earnings. We are in agreement with the learned counsel for the appellant that 3 months must certainly have been reckoned as the period of involuntary enforced unemployment. 5. The appellant was initially admitted to the local hospital at Mananthavady. Thereafter she was shifted to Medical College Hospital, Calicut. She had continued there as an inpatient for a period of 26 days. She had continued treatment thereafter as an outpatient. As mentioned earlier, below knee amputation of the left leg was also undertaken. For transport to hospital and back from the hospital at Calicut, a total amount of Rs.600/- is seen awarded. We are certainly of the opinion that the said amount is inadequate. For extra nourishment for the period of treatment, only an amount of Rs.600/- has been awarded. This is unreal, contends the learned counsel. We agree. For bystander's expenses for the period of ## **M.A.C.A No.3105 of 2008-G** 4 26 days of hospitalisation at distant Calicut, only an amount of Rs.500/- has been awarded. We agree with the learned counsel that at least an amount of Rs.100/- per day must have been awarded under this head. For medical and miscellaneous expenses, only an amount of Rs.700/- has been award. The Tribunal has grossly ignored the circumstance that the appellant was an inpatient at distant Calicut for a period of 26 days, contends the learned counsel. We find merit in that contention. We are satisfied that the amount awarded under the head of medical and miscellaneous expenses (Rs.700/-) is grossly inadequate. For pain and suffering, only an amount of Rs.5,000/has been awarded. No amount has been awarded under the head of loss of amenities. For the loss of earning power consequent to continuing disability, the Tribunal, though it had come to the conclusion by adopting the multiplier-multiplicand method that the total loss suffered is Rs.2,07,360/-, only an amount of Rs.1,00,000/- is seen awarded on the ground that the claim under that head was only Rs.1 lakh. 6. We have considered all the relevant inputs. We are in agreement with the learned counsel for the appellant that the amount awarded is not at all satisfactory. We are perturbed to ## **M.A.C.A No.3105 of 2008-G** 5 see such want of application of mind by the Tribunal to the relevant facts in the impugned award. We make no secret of our extreme displeasure and dissatisfaction against the manner in which the award has been passed. 7. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.1,87,200/- as shown below in addition to the amount already awarded by the Tribunal under the impugned award. |i)|Loss of income|:<br>Rs. 4,500.00| |---|---|---| |||[(2500X3=7500 minus| |||3000)]| |ii)|Transportation expenses|:<br>Rs. 1,400.00| |||(2,000 minus 600)| |iii)|Extra nourishment|:<br>Rs. 2,400.00| |||(3000 minus 600)| |iv)|Bystander's expenses|:<br>Rs. 2,100.00| |||[26X100=2600 minus| |||500]| |v)|Medical and miscellaneous|| ||expenses|:<br>Rs. 2,300.00| |||(3000 minus 700)| |vi)|Pain and suffering|:<br>Rs. 5,000.00| |||(10,000 minus 5,000)| |vii)|Compensation for loss|| ||of earning power|:<br>Rs.1,52,000.00| |||[2500X12X14X60/100 =| |||2,52,000) minus 1,00,000]| 6 **M.A.C.A No.3105 of 2008-G** vii) Loss of amenities : Rs. 17,500.00 (no amount is awarded by the Tribunal) ---------------------Total : Rs.1,87,200.00 ========= 8. The learned counsel for the appellant submits that the Tribunal has grossly erred in directing payment of interest only @ 6% per annum. We agree with that grievance raised by the appellant. We are satisfied that interest ought to be awarded @ 7/5% per annum. ## 9. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.1,87,200/- (Rupees One lakh eighty seven thousand and two hundred only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We direct that interest be paid on the entire amount of compensation @ 7.5% per annum from the date of the claim to the date of payment/realisation; d) We further direct that proportionate cost be paid to the appellant in accordance with the dictum in an unreported 7 ## **M.A.C.A No.3105 of 2008-G** decision in **Jeena v. Satheesh Babu.K** in the judgment dated 12.08.2011 in M.A.C.A No.946 of 2011. e) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** rtr/