Shaji Thandikal House v. Managing Director, KSRTC, Trivandrum and Varkey S. Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** **MACA.No.1713 OF 2014** **AGAINST THE AWARD IN OPMV 87/2011 DATED 12-02-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** **SHAJI THANDIKAL HOUSE, THOTAKKATTUKARA, ALUVA, MENTALLY INFIRMED REPRESENTED BY HIS MOTHER KHADEEJA, W/O.ALI, THANDIKAL HOUSE, THOTAKKATTUKARA, ALUVA.** **BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY** ## **RESPONDENT/S:** **1 MANAGING DIRECTOR K.S.R.T.C, TRIVANDRUM P.O. 695 001. 2 VARKEY SO.ANTONY MEPULLI HOUSE, KUTTIKKATTU, PARIYARAM, THRISSUR DISTRICT - 680 001.** **R1 BY SHRI P.C. CHACKO** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2020, THE COURT ON 30-09-2020 DELIVERED THE FOLLOWING:** ## **MACA.No.1713 OF 2014** ..2.. ## **JUDGMENT** ## **Dated this the 30[th] day of September 2020** The appellant was the petitioner in O.P.(M.V.) No.87 of 2011 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in this appeal were the respondents before the Tribunal. The 1[st] respondent is owner and the 2[nd] respondent is the driver of the offending vehicle. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries that he sustained in a motor accident that took place on 28.07.2010. 3. The case of the petitioner in the claim petition, in brief, is that, on 28.07.2010, while he was attempting to alight from the bus bearing Regn. No.KL-15/3101, driven by the 2[nd] respondent and belonging to the 1[st] respondent, near Paravur Kavala, Aluva, Ernakulam, the ## **MACA.No.1713 OF 2014** **==> picture [17 x 9] intentionally omitted <==** driver of the bus negligently moved the bus. As a result of the rash and negligent act of the 1[st] respondent, the petitioner fell down and sustained the following injuries. 1. Bilateral parietal bone fracture ## 2. Extradural parietal haematoma (g) side The petitioner was treated as an inpatient at the Lissie Hospital, Ernakulam from 28.07.2010 to 07.08.2010. He underwent a surgery for evacuation of extradural haematoma on emergency basis. Thus, the petitioner sought for compensation of Rs.2,54,000/-, which was limited to Rs.1,50,000/- under various heads. 4. The 2[nd] respondent was set ex parte. Even though the 1[st] respondent entered appearance, it did not file any written statement or contest the proceedings. 5. The petitioner produced and marked Exhibits A- 1 to A-9 series in evidence. 6. The Tribunal, after considering the evidence and materials on record, by the impugned award allowed the claim petition in part by awarding an amount of ## **MACA.No.1713 OF 2014** ..4.. Rs.79,853/- as compensation with interest at the rate of 8% per annum with proportionate costs. 7. The comparative table showing the compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |Sl.<br>No.|Head of Claim<br>Compensation for|Amount<br>claimed (in<br>Rupees)|Amount<br>Awarded<br>(in Rupees)|Amount<br>Awarded<br>(in Rupees)| |---|---|---|---|---| |1|Loss of earnings|20,000||4,000| |2|Transport to Hospital|3,000||500| |3|Extra nourishment|5,000||750| |4|Attendant charges|15,000||1,650| |5|Damage to clothes|1,000||500| |6|Medical expenses|60,000||42,453| |7|Pain and sufferings|50,000||20,000| |8|Loss of amenities etc.|50,000||10,000| |9|Disability & loss earning<br>power|50,000||Nil| ||Total|2,54,000<br>limited to<br>1,50,000||Rs.79,583/-| |||||| 8. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner has preferred this appeal. 9. Heard Smt. Anupama Johny, the learned counsel appearing for the petitioner and Shri. P.C.Chacko, the learned Standing Counsel appearing for the 1[st] respondent. 10. The bone of contention of the learned counsel ## **MACA.No.1713 OF 2014** **==> picture [17 x 8] intentionally omitted <==** appearing for the appellant was that the amounts awarded by the Tribunal under the heads - loss of earnings, pain and sufferings and loss of amenities is on the lower side, especially when the petitioner had suffered a head injury and underwent a surgery. She contended that the Tribunal ought to have granted compensation as claimed in the claim petition. 11. Per contra, the learned counsel appearing for the 1[st] respondent contended that the amount awarded by the Tribunal was reasonable and just and there is no need for any interference by this Court. 12. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 13. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988 deals with the concept of **MACA.No.1713 OF 2014** ..6.. 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 14. It is an undisputed fact that the petitioner was aged 38 years and that the accident took place on 28.07.2010 while he was trying to alight from the bus driven by the 2[nd] respondent and owned by the 1[st] respondent. It is also on record that the petitioner sustained injuries as discernible from Exhibit A-7 discharge summary. The petitioner claims that he was a coolie worker and earning an amount of Rs.4,000/- per month. The Tribunal accepted the income of the petitioner, as claimed. 15. It is to be borne in mind that the 1[st] respondent even though had entered appearance, did not chose to file any written statement to refute the assertions in the ## **MACA.No.1713 OF 2014** ..7.. claim petition. Nevertheless, the Tribunal went ahead and decided the claim petition on its merits, on the basis of the materials produced by the petitioner as Exhibits A- 1 to A-9. 16. Admittedly, the petitioner fell down from the bus and underwent a surgery for evacuation of an extradural haematoma. He was admitted as inpatient for a period of 10 days post surgery. Therefore, the loss of earnings fixed by the Tribunal at the rate of Rs.4000/- for a period of one month is on the lower side. After sustaining a head injury and a undergoing a surgical procedure, normally Doctors advise the patients to take complete rest for a reasonable period of time, to recuperate. Thus, I am of the view that the compensation under the head - loss of earnings has to be fixed at 3 months. Accordingly, I enhance the amount under the said head at Rs.12,000/- instead of Rs.4,000/- fixed by the Tribunal. 17. Similarly, the petitioner had claimed an amount ## **MACA.No.1713 OF 2014** **==> picture [18 x 8] intentionally omitted <==** of Rs.50,000/- under the head - pain and sufferings. Undisputedly, the petitioner had sustained a fracture on his skull and underwent an emergency surgery for evacuation of an extradural haematoma. He was admitted as an inpatient for 11 days. Likewise, as per Exhibit A-8 scan report, it is seen that the petitioner had also sustained the following injuries:- 1. Small haemorrhagic contusions in right frontal and left temporal lobes. 2. Bilateral parietal bone fracture with adjacent scalp haematoma. 3. Right mastoid air cells are sclerosed with opacity in the right mastoid antrum. Therefore, the amount of Rs.20,000/- awarded by the Tribunal under the head – pain and sufferings is on the lower side. Accordingly, I enhance the compensation under the said head by a further amount of Rs.15,000/-, i.e. to Rs.35,000/- 18. The amount awarded by the Tribunal under the head – loss of amenities was Rs.10,000/- instead of Rs.15,000/- claimed by the petitioner, which also I find to ## **MACA.No.1713 OF 2014** **==> picture [18 x 9] intentionally omitted <==** be on the lower side. Considering the nature of injuries and that the petitioner underwent a surgery and hospitalisation for ten days, as evidenced by Exhibits A-7 and A-8, I am of the firm view that the petitioner is entitled for compensation of Rs.15,000/- as claimed. 19. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. Thus I do not find any grounds to enhance the amounts under any other heads of claim. 20. On an overall reappreciation of the pleadings and the materials on record and the law laid down by the Hon'ble Supreme Court in **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd.** [(2014) 2 SCC 735], **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620(SC)], and **Pappu Deo Yadav vs. Naresh Kumar and others** [Civil Appeal No.2567/2020], I am of the definite opinion that the petitioner is entitled for enhancement of the amounts as modified and recalculated above, and given in the table below for easy ## **MACA.No.1713 OF 2014** ..10.. ## reference. |Sl.<br>No<br>.|Head of Claim<br>Compensation for|Amount<br>claimed<br>(in<br>Rupees)|Amount<br>Awarded<br>(in Rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---|---| |1|Loss of earnings|20,000|4,000|12,000| |2|Transport to<br>Hospital|3,000|500|500| |3|Extra nourishment|5,000|750|750| |4|Attendant charges|15,000|1,650|1,650| |5|Damage to clothes|1,000|500|500| |6|Medical expenses|60,000|42,453|42, 453| |7|Pain and sufferings|50,000|20,000|35,000| |8|Loss of amenities<br>etc.|50,000|10,000|15,000| |9|Disability & loss<br>earning power|50,000|Nil|Nil| ||Total|2,54,000<br>limited to<br>1,50,000|Rs.79,583/-|Rs.1,07,853/-<br>rounder off to<br>Rs.1,08,000/-| 21. It is seen that the Tribunal has granted only 8% interest on the compensation awarded. In light of the decisions of the Hon'ble Supreme Court in **MCD v. Uphaar Tragedy Victims Association** [(2011) 14 SCC 481] and **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others** [ (2020(3)KHC 760] and considering that the accident took place on 28.07.2010, I fix the interest at the rate of 9% per annum on the enhanced compensation. In the result, the appeal is allowed in part by ## **MACA.No.1713 OF 2014** ..11.. enhancing the compensation by a further amount of Rs.28,417/- (Rupees Twenty eight thousand four hundred and seventeen only) with interest at the rate of 9% per annum on the enhanced compensation from the date of petition till the date of realization with proportionate costs. The 1[st] respondent shall deposit the additional compensation before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment after deducting the liability, if any, of the appellant towards balance court-fee and legal benefit fund. The disbursement of the compensation to the appellant shall be done by the Tribunal, in accordance with law. Sd/- **C.S.DIAS** **JUDGE** kkj