Suja Kuriyan v. Managing Director, Kerala State Road Transport Corporation and Sidhardhan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 22ND DAY OF MARCH 2021/1ST CHAITHRA, 1943 M.A.C.A.No.192 OF 2012(C) (AGAINST THE AWARD DATED 23-01-2010 IN O.P.(M.V.)No.552/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL) ## APPELLANT/PETITIONER: SUJA KURIYAN, W/O.RAJAN K.VARGHESE, QUARTER NO.B1, SAINIK SCHOOL COMPOUND, SAINIK SCHOOL P.O., VIA KAZHAKKUTTOM, THIRUVANANTHAPURAM DISTRICT, PIN-695 585, NOW RESIDING AT QUARTER NO.MTCES B7, MUKKOLAKKAL P.O., THIRUVANANTHAPURAM-44. BY ADVS. SRI.MATHEW SKARIA SRI.JOY JOSEPH (MUNDACKAL) ## RESPONDENTS/RESPONDENTS: 1 MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM DISTRICT, PIN-695 023. 2 SIDHARDHAN, S/O.BHASKARAN, DEEPA LAND, KUNNUVILA, KARICHIYIL, ATTINGAL, THIRUVANANTHAPURAM DISTRICT, PIN-695 101. ## OTHER PRESENT: SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2021, THE COURT ON 22-03-2021 DELIVERED THE FOLLOWING: M.A.C.A.No.192 OF 2012(C) 2 ## **JUDGMENT** The appellant is the petitioner in O.P.(MV) No.552/2003 on the file of the Motor Accidents Claims Tribunal, Attingal. It was a claim petition filed under Section 166 of the Motor Vehicles Act. The above claim petition was tried along with four other claim petitions.(Hereinafter the parties are mentioned in accordance to their rank in the Tribunal). 2. The applicants in all the claim petitions except in O.P.(MV) No.488/2003 are passengers in the K.S.R.T.C bus bearing registration No.KL-15/3382(TS-295). On 14.2.2003 the applicant and deceased Thankamany who were travelling in KSRTC bus mentioned above along Thiruvananthapuram-Kollam national highway towards Attingal(east to west). The said bus was driven by the 2[nd] respondent in a rash and negligent manner and in a reckless speed M.A.C.A.No.192 OF 2012(C) 3 endangering human life and properties. At Pangappara bridge, the bus dashed against the railings of the bridge and it capsized into the river. In the said occurrence, several passengers sustained injuries and the petitioner also sustained serious injuries. According to the petitioner, the accident happened because of rash and negligent driving by the bus driver. 3. To substantiate the case, Exts.A1 to A34 were marked by the claimants. After going through the evidence and documents on record, the Tribunal awarded an amount of Rs.2,87,504/- with interest at the rate of 7.5% per annum from the date of application till realisation. Aggrieved by the quantum of compensation awarded, this appeal is filed by the petitioner. 4. Heard the counsel for the petitioner M.A.C.A.No.192 OF 2012(C) 4 and counsel for the respondents. 5. The counsel for the appellant submitted that the petitioner was working as Assistant Director in the Agricultural Marketing Department and getting a monthly income of Rs.14,819/-. Ext.A34 is the salary certificate of the petitioner. The main grievance of the petitioner is that, while assessing the disability for the post retirement period, an amount Rs.2,250/- was taken as notional income of the appellant. The counsel submitted that the Tribunal ought to have taken at least half of the salary amount mentioned in Ext.A34. The counsel relied on the judgment of this court in _**National Insurance**_ ## _**Co. Ltd., Vs. Nirmala Balachandran and Others**_ _**(2012(3) KLJ 214)**_ . There is some force in the arguments raised by the appellant. This Court in _**Nirmala**_ 's case (supra) considered the above M.A.C.A.No.192 OF 2012(C) 5 said point in paragraph 18 and 19 of the ## judgment and which reads as follows: _18. We will also have to take into account the indisputable reduction in earnings after the claimant attains the age of retirement. At 60 years when he retires, he would otherwise have been able to take up other employment. Even with reduced physical ability, he may be able to take up such employment. But it would be puerile to assume that there will be no reduction in earning at least for such post retiral earnings which the claimant/injured may take up after superannuation. So considered, the claimant will certainly be entitled for compensation for the possible reduction in earnings after his superannuation. 25% disability has already been ascertained. There is no challenge against the same. We find the said conclusion to be reasonable. For persons of age group 60-65 years, 7 is the multiplier in accordance with the dictum in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121. Reckoning 7 as the multiplier, certainly for the post retiral reduction in earning capacity, compensation will have to be awarded._ _19. 7000 cannot, at any rate, be reckoned as the possible post retiral monthly income,_ M.A.C.A.No.192 OF 2012(C) 6 _contends the learned counsel for the appellant Sri.Rajan Kaliyath. The claimant, it cannot be forgotten, was earning an income of Rs. 19,462/- at the time of the accident. The post retiral earnings will have to be ascertained with the help of the inputs available about his present income. In any view of the matter, we are satisfied that the Tribunal has not committed any error in reckoning Rs.7,000/-as the possible monthly income for the post retiral period._ 6. In the above case, while assessing the disability for the post-retirement period, half of the salary is taken. Considering the entire facts and circumstances of the case, half of the salary can be taken for the assessment of compensation for the postretirement period. I fix it as Rs.7,000/-. If that is the case, compensation for permanent disability for the post-retirement period will be like this, 7,000 x 12 x 9 x 20/100 = 1,51,200/-. The multiplier used by the Tribunal is '8' and admittedly it ought to M.A.C.A.No.192 OF 2012(C) 7 have been '9'. The amount already granted by the Tribunal in this head is Rs.43,200/- that is to be deducted. Then the balance amount is 1,51,200 – 43,200 = 1,08,000/-. 7. Admittedly, the appellant was in the hospital for about 30 days. The appellant is entitled bystander expenses at the rate of Rs.150/- per day. Then the amount will be 150 x 30 = 4,500/-. The Tribunal awarded only Rs.1,000/-. Then the balance amount entitled to the appellant will be 4,500 - 1,000 = 3,500/-. Therefore, the enhanced compensation entitled to the appellant can be summarised like this: Compensation for continuing and permanent disability for the post-retirement period is Rs.1,08,000/- + bystanders expenses Rs.3,500/- = Rs.1,11,500/-. The appellant is entitled interest at the rate of 7.5% per annum from the date of application till M.A.C.A.No.192 OF 2012(C) 8 realisation. Therefore, this appeal is allowed in part. The appellant is entitled for an enhanced compensation of Rs.1,11,500/- with interest at the rate of 7.5% per annum from the date of application till realisation. Respondents are directed to pay the enhanced compensation with interest. ## _**Sd/-**_ ## **P.V.KUNHIKRISHNAN** ## **JUDGE** ss