Suneer v. Kerala State Road Transport Corporation (KSRTC) and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945** ## **MACA NO. 1551 OF 2015** **OPMV NO.1627/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL** ## **,KOLLAM** ## **APPELLANT/PETITIONER:** **SUNEER AGED 21 YEARS S/O. SUBAIR KUTTY, SUMEER MANZIL, CHAMAVILA VADAKKATHIL, VADAKKUMTHALA P.O., KARUNAGAPPALLY. BY ADV SRI.V.PREMCHAND** ## **RESPONDENTS/RESPONDENTS:** - **1 THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION (KSRTC), FORT, THIRUVANANTHAPURAM - 695 023.** - **2 VIJAYAN S/O. THEVAN, EDAYAD THEKKATHIL, S.N.PURAM, PAVITHRESWARAM, KOLLAM - 688 582.** - **3 VINEETH S/O. PODIYAN, OOPENVILA PADINJATTATHIL, VADAKKUMTHALA, PANMANA, KARUNAGAPPALLY - 690 536.** - **4 NATIONALINSURANCE COMPANY LTD. KOLLAM- 691001.** **BY ADV ALEX ANTONY SEBASTIAN P.A.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1551/2015 : 2 : ## **JUDGMENT** The appellant was the 2[nd] petitioner in OP(MV) No.1627/2011 on the files of the Motor Accident Claims Tribunal Kollam. 2. The said claim petition was submitted by him along with his mother as the 1[st] petitioner, seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.11.2010. At the time of the accident, the appellant was a minor aged 17 years and he sustained injuries when the motorcycle on which he was pillion riding, was hit by a KSRTC bus driven by the 2[nd] respondent. The 1[st] respondent is the Managing Director of the KSRTC. The 3[rd] respondent was the owner and the 4[th] respondent was the insurer of the said motorcycle. The appellant was a plus two student and he sustained very serious injuries in the accident which resulted in physical disablement as well. The claim petition was submitted in such circumstances. 3. The 1[st] respondent, the registered owner of the bus, filed a written statement contending that the accident occurred due to the negligence of the rider of the motorcycle on which the M.A.C.A. No.1551/2015 : 3 : appellant was travelling and there was no negligence on the part of the 2[nd] respondent, the driver of the bus. The quantum of compensation was also disputed by them. The 4[th] respondent submitted a written statement contending that the accident occurred solely due to the negligence of the driver of the bus. The quantum of compensation was also disputed by them. However, they admitted the existence of valid policy for the motorcycle. 4. The evidence in this case consists of oral testimonies of PWs 1 and 2 and as documentary evidence, Exts.A1 to A19 were marked. The disability certificate of the appellant was marked as Ext.C1. After examining the materials produced on record, the appellant concluded that the accident occurred due to the negligence of the 2[nd] respondent. Therefore, the 3[rd] and 4[th] respondents were exonerated from the liability. The 1[st] and 2[nd] respondents were held jointly and severally liable to pay the quantum of compensation. The quantum of compensation was fixed as Rs.5,05,417/- and the said amount was directed to be deposited with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. M.A.C.A. No.1551/2015 : 4 : 5. Heard Sri. V. Premchand, the learned counsel appearing for the appellant and Sri. Alex Antony Sebastian, the learned counsel appearing for the 1[st] respondent. 6. The only question that arises for consideration is whether any enhancement of compensation is necessary or not. On perusal of the records, I find that, in certain heads, the compensation awarded by the tribunal is on the lower side and requires reconsideration. The first head that has to be considered is for disability and consequential loss of earning capacity of the appellant. Ext.C1 would indicate that the appellant suffered whole body physical disability of 40% and the disability with reference to the particular limb is 90%. The impact of the injury as mentioned in the disability certificate is global brachial plexus palsy left upper limb. It is also discernible therefrom that consequent to the said injury, he had no sensation below his left shoulder. The said certificate would clearly indicate that the movements of the left hand is practically nil. The tribunal has accepted the percentage of disability as 40%. 7. The monthly income accepted by the tribunal was only Rs.2,000/-, which is very meagre. Of course, it is true that the M.A.C.A. No.1551/2015 : 5 : appellant was a student at the relevant time and therefore, a non earning member. But the fact that in the very near future he would start earning, cannot be ignored. At that point of time, he will have to face serious difficulties and discomfort in pursuing the avocation consequent to the serious nature of injuries and the disablement arising therefrom. As observed above, one of his hand became practically function-less and the same will seriously affect his earning capacity. Regarding the monthly income, considering that he was expected to earn his own livelihood in the near future, the potential income that an ordinary worker in similar circumstances would have earned, should be taken into account. Therefore, the monthly income of the appellant cannot be fixed at a rate lesser than the monthly income to be calculated in respect of the other workers. It is to be noted that, when the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is taken into account, the monthly income for an ordinary worker could be reasonably fixed as Rs.7,500/- for the year 2010 M.A.C.A. No.1551/2015 : 6 : (taking the basic monthly income as Rs.4,500/- for the year 2004 and by making an addition of Rs.500/- each per year for determining the monthly income for subsequent years). Thus, the said monthly income is accepted in this case. 8. The next aspect is the amount to be added towards future prospects. The learned counsel appearing for the 3[rd] respondent would contend that, he was a non-earning person, therefore, no addition need not be made towards future prospects. Besides the same, the whole body disability is 40% only and therefore, such computation is not necessary. However, it is a fact that the appellant had sustained such serious nature of disablement at the young age of 17 years which is a crucial element to be considered for assessing the compensation for disability. The consequence of such serious disability is that, the options which were available before him as far as his career is concerned have become very much limited, and this would seriously affect the earning capacity of the appellant. Therefore, this is a fit case in which future prospects should be taken into account considering the aforesaid aspects. In the light of **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], the addition M.A.C.A. No.1551/2015 : 7 : to be made towards future prospects is 40% for the persons coming within the age group below 40 years and therefore, the said percentage is to be accepted for assessing the compensation in this case. In such circumstances, when the reassessment of compensation for permanent disability and consequential loss of earning power is made, the amount comes to Rs.9,07,200/[(7500+40%)x12x18x40/100]. The amount already awarded is Rs.1,72,800/- and thus the additional compensation comes to Rs.7,34,400/-. 9. The amount awarded by the tribunal towards pain and sufferings is Rs.25,000/- which appears to be on the lower side. It is evident that the appellant had sustained very serious injuries which resulted in inpatient treatment of 26 days and it is evident that he was compelled to continue the treatment even after the discharge. Therefore, I deem it appropriate to grant a further sum of Rs.25,000/- under the said head. 10. The next head which requires to be considered is loss of amenities and enjoyment. It is evident that the appellant had sustained very serious injuries which made the left hand of the appellant motionless. The said disability was suffered by him at the M.A.C.A. No.1551/2015 : 8 : young age of 17 and he has to live with that disability for the remainder of his life. The sufferings he has to undergo while leading a life with such kind of disability cannot be ignored and therefore, I deem it appropriate to award a further sum of Rs.25,000/- under the said head, in addition to Rs.57,600/- granted by the tribunal under this head. 11. The next aspect to be considered is the loss of marriage prospects of the appellant. As observed above, the disability referred above is serious in nature and this would affect the prospects of marriage for the appellant. Therefore, a further sum of Rs.50,000/- is granted under said head. Thus, the total additional compensation is determined as Rs.8,34,400/- [734400+25000+ 25000+50000]. In the result, this appeal is allowed. The award dated 08.10.2014 passed by the Motor Accident Claims Tribunal, Kollam in OP(MV) No.1627/2011 is hereby modified by granting an additional compensation of Rs.8,34,400/- (Rupees eight lakhs thirty four thousand four hundred only) and the said amount shall be deposited by the 1[st] respondent along with interest at the rate of 9% per annum from the date of petition till realisation with proportionate M.A.C.A. No.1551/2015 : 9 : costs within a period of three months from the date of receipt of a copy of this judgment. It is further ordered 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 above, within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/