Sree Kumari vs Tamil Nadu State Transport Corporation (MACA Nos. 2298 of 2012 and 191 of 2013)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 MACA NO. 2298 OF 2012 ``` ``` AGAINST THE AWARD DATED 07.02.2005 IN OP(MV) 75/2002 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL,NEYYATTINKARA`** ## **`APPELLANT/APPLICANT:`** ``` SREEKUMARI AGED 58 YEARS THATTANVILA VEEDU, THOZHUKKAL, NEYYATTINKARA. ``` ``` BY ADVS. SRI.G.SUDHEER SMT.N.P.ASHA SMT.M.JAYASREE ``` ## **`RESPONDENT/RESPONDENT:`** ``` THE MANAGING DIRECTOR TAMILNADU STATE TRANSPORT CORPORATION, MADHURAI REGION-III, KRISHNANCOIL, NAGORCOIL, K.K.DISTRICT, TAMILNADU, PIN. 623 601. ``` ``` ADV SUBHASH CYRIAC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.01.2024, ALONG WITH MACA.191/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 MACA NO. 191 OF 2013 ``` ``` AGAINST THE AWARD DATED 07.02.2005 IN OP(MV) 75/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,NEYYATTINKARA ``` ## **`APPELLANT/1ST RESPONDENT:`** ``` MANAGING DIRECTOR TAMIL NADU STATE TRANSPORT CORPORATION, MADURAI DIVISION III, NAGERCOIL. ``` ``` BY ADV SUBHASH CYRIAC ``` ## **`RESPONDENT/CLAIMANT:`** ``` SREEKUMARI W/O. SIVANKUTTY, THATTANVILA VEEDU, THOZHUKKAL, NEYYATTINKARA. ``` ``` BY ADVS. G.SUDHEER N.P.ASHA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.01.2024, ALONG WITH MACA.2298/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013 ``` ``` 3 ``` ## **`JUDGMENT`** ## **`[MACA Nos.2298/2012, 191/2013]`** Both these appeals are arising from the award passed by the Motor Accident Claims Tribunal, Neyyattinkara, in O.P.(M.V.) No.75/2002. The said claim petition was submitted by the appellant in the M.A.C.A. No.2298/2012, seeking compensation for the injuries sustained to her in a motor accident that occurred on 10.10.2001. (For convenience, the parties in these appeals are hereinafter referred to on the basis of their respective ranks in the claim petition). 2. According to the claimant, the accident occurred when she was travelling as a passenger in a bus bearing No.TN 74 N 0305, owned by the 1st respondent Corporation and driven by the 2nd respondent, due to the rash and negligent driving of the 2nd respondent, she was thrown away from the bus and sustained serious injuries. Immediately, she was taken to the hospital and was treated as an inpatient at Jayasekharan Medical Trust Hospital, Nagercoil. Thereafter, she was referred to Medical College Hospital, Thiruvananthapuram and continued her ``` 4 ``` ## **`MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013`** treatment there. She was a potter aged 48 years. The claim petition was submitted in such circumstances. 3. The respondents filed a joint written statement admitting the ownership of the said vehicle by the 1st respondent. However, they denied the negligence on the part of the 2nd respondent and according to them, the passenger fell out outside the bus while she was attempting to put her saree in the right position and during the said process, she lost her grip and fell down. It was contended that no negligence could be attributed to the 2nd respondent in such circumstances. Hence, the dismissal of the 2nd respondent was sought. 4. To substantiate the contentions, the appellant got herself examined as PW1 and as documentary evidence, Exts.A1 to A9 series were marked. The driver of the bus was examined as RW1. After the trial, the Tribunal arrived at the finding that the accident occurred due to the negligence on the part of the 2nd respondent/driver and being the registered owner/employer, the 1[st] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.68,250/- and the 1st respondent ``` MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013 ``` ``` 5 ``` was directed to deposit the said amount along with interest @ 9% per annum from the date of petition till realisation. M.A.C.A No.2298/2012 was filed by the petitioner in such circumstances seeking enhancement of compensation, whereas the 1[st] respondent, the registered owner of the bus, filed M.A.C.A. No.191/2013, challenging the finding of the Tribunal on negligence. 5. Heard Sri.G. Sudheer (Karakkonam), learned counsel appearing for the petitioner, the appellant in M.A.C.A. No.2298/2012 and Sri.Subhash Cyriac, learned counsel appearing for the 1st respondent in the claim petition, the appellant in M.A.C.A. No.191/2013. 6. As the 1st respondent raised a challenge against the finding of the Tribunal on the question of negligence, the said issue has to be decided first. The specific contention put forward by the learned counsel for the 1[st] respondent is that under no circumstances can any negligence be attributed to the 2nd respondent, as according to them, the accident occurred when the appellant tried to correct the position of her saree, while travelling as a passenger in the said vehicle and in the said process she lost ``` MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013 ``` ``` 6 ``` her grip and thrown off to the road. To substantiate the said contention, they mainly rely upon the evidence of RW1. On the other hand, the claimant got herself examined as PW1 and asserted the manner in which the accident occurred. According to her, while she was travelling as a passenger, the 2nd respondent, all of a sudden, made a swift turning of the said vehicle and due to its impact, she lost her grip and was thrown away from the vehicle. As regards the evidence of RW1, the Tribunal did not rely upon the same, as it was found that, since he was driving the vehicle at the relevant time, the possibility of him witnessing the manner in which she fallen down, was highly improbable. The said finding is a probable one, because of the fact that, since the incident took place behind him and at the relevant time, he was driving the vehicle, it was highly unlikely that he had seen the same. On the other hand, the petitioner, while she was examined as PW1, asserted the manner in which the accident took place. It is also discernible that the Police also registered a crime as Ext.A1 against the driver of the bus. When both the deposition of PW1 and RW1 are taken into consideration, the probability of the ``` MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013 ``` ``` 7 ``` version of PW1 becoming correct is very high. This is particularly because, as RW1 is the person who was driving the vehicle at the relevant time, it is highly unlikely that he could witness the manner in which the petitioner had fallen down, as rightly observed by the Tribunal. Therefore, the version of the PW1 is more probable, and the fact that a crime has been registered against the 1st respondent also fortifies the said version. In such circumstances, I do not find any reason to interfere with the finding of the Tribunal in this regard. 7. The next aspect is the quantum of compensation, which is the subject matter in M.A.C.A. No.2298/2012. The appellant was aged 48 years and was a potter by profession. The monthly income accepted by the Tribunal was Rs.2,000/-, which appears to be on the lower side with respect to an accident in the year 2001. It is to be noted that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236],** the honourable Supreme Court was pleased to take the monthly income of an ordinary worker even without any evidence as Rs.4,500/- for an accident occurred in the year 2004. ``` MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013 ``` ``` 8 ``` Therefore, under no circumstances an amount of Rs.2,000/- can be treated as a reasonable amount for an accident that occurred in the year 2001. Therefore, I deem it appropriate to fix it as Rs.3,000/-. 8. The next aspect relates to the percentage of disability. Ext.A8 is a disability certificate issued by a Doctor wherein the percentage of disability certified was 25%, but the Tribunal accepted the same as 10%. I have carefully gone through the contents of Ext.A8. The injuries mentioned therein are mainly pertaining to the compound fracture lower end of (L) radius and ulna. Considering the nature of injuries, it is highly unlikely that that would result in the disablement of 25%, and for that reason, the Tribunal did not accept the same. The doctor who issued the certificate was also not examined. After carefully going through the nature of the injuries described in Ext.A8 and the reason for assessment therein, I find that the 10% disability assessed by the Tribunal is reasonable, and accordingly, the same is retained. Thus, while reassessing the compensation with the revised monthly income and keeping the other parameters adopted by the ``` MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013 ``` ``` 9 ``` Tribunal intact, the amount would come to Rs.46,800/- (3,000 x 12 x 13 x 10/100). The amount already awarded by the Tribunal under this head is Rs.31,200/- and this would result in an additional compensation of Rs.15,600/-. 9. The next aspect is the loss of earnings. The Tribunal awarded compensation under the said head for a period of three months. However, considering the nature of the injuries and the avocation of the petitioner, which is that of a potter, I am of the view that the injuries would have certainly prevented her from pursuing her avocation at least for a period of four months. Therefore, compensation is to be granted for that period. This would result in an additional compensation of Rs.6,000/-. 10. Considering the nature of the injuries and the period of treatment which she had undergone, which includes surgical procedures, I deem it appropriate to grant a further sum of Rs.7,500/- under the head of pain and suffering. Similarly, taking note of the nature of injuries, the percentage of disability sustained by her, and its possible impact upon her avocation and the quality of life, I deem it appropriate to grant a further sum of ``` MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013 ``` ``` 10 ``` Rs.10,000/- under the head of loss of amenities. Thus, the total additional compensation is determined as Rs.39,100/- (15,600 + 6,000 + 7,500 + 10,000). 11. In the result, M.A.C.A. No.191/2013 is dismissed. M.A.C.A. No.2298/2012 is allowed by modifying the award dated 07.02.2005 in O.P.(M.V.) No.75/2002 passed by the Motor Accident Claims Tribunal, Neyyattinkara, by granting an additional compensation of Rs.39,100/- (Thirty-nine thousand and one hundred only) with interest @ 8% per annum from the date of petition till realisation. However, it is clarified that as M.A.C.A. No.2298/2012 was filed with a petition to condone the delay of 2648 days and it was condoned by this Court as per order dated 22.11.2021 on condition that the appellant shall not be entitled to interest for the said period, the 1[st] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the 1[st] respondent to make the deposit as ordered ``` MACA NO. 2298 OF 2012 & MACA NO. 191 OF 2013 ``` ``` 11 ``` above, within period of two months from the date of receipt of a copy of this judgment. In case, she fails to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs