Suresh Kumar v. The Managing Director, KSRTC Transport, Babu.P. and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** ## **MACA NO. 553 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 2233/2004 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM** ## **APPELLANT/S:** SURESH KUMAR S/O.KRISHNANASARI, KOKKUDAMOOZHI,, EDAVILAKATHU PUTHEN VEEDU, POOVACHAL.P.O.,, KATTAKADA. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL ## **RESPONDENT/S:** 1 THE MANAGING DIRECTOR, K.S.R.T.C TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 695 001. 2 BABU.P. ALUMULEKKU ROADARIKATHU VEEDU, POOVACHAL.P.O.,, THIRUVANANTHAPURAM.695 575 3 THE MANAGER THE NEW INDIA ASSURANCE CO.LTD.,, KOTTARATHIL BUILDING ANNEX, PALAYAM,, THIRUVANANTHAPURAM. 695 001. BY ADVS. SMT.RAJI T.BHASKAR SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.553 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.553 of 2011** ## **====================== Dated this the 4[th] day of October, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.2233/2004 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant 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 an accident on 31.10.2004. It was his case that, on 31.10.2004, while the appellant was riding his motor cycle bearing registration No.KL-01/R 7239 from Aryanadu to Kuttichal with one Rajendran @ Anilkumar on the pillion, when the motor cycle reached the place of accident, a bus bearing registration No.KL-15/3066 (bus), driven by its 3 MACA No.553 of 2011 driver in a rash and negligent manner, hit the motor cycle. The appellant sustained serious injuries including Type III compound comminuted fracture of two bones of the right leg. He was treated at the Medical College Hospital, Thiruvananthapuram as inpatient from the date of accident till 13.12.2004. The appellant was a Mason by profession and earning a monthly income of Rs.5,000/-. The accident occurred due to the negligence of the driver of the bus. The first respondent was the owner of the bus. The respondents 2 and 3 were the owner and insurer of the motor cycle. The appellant claimed a compensation of Rs.3,10,000/- from the respondents, which was limited to Rs.3,00,000/-. 3. The pillion rider on the motor cycle also filed OP(MV) 2227/2004 before the same Tribunal, seeking compensation from the respondents. 4. The respondents 1 and 2 did not contest the 4 MACA No.553 of 2011 proceedings and were set ex parte. 5. The third respondent filed separate written statements in two claim petitions contending that the accident occurred due to the negligence of the driver of the bus. Therefore, the third respondent prayed for total exoneration of liability. 6. The Tribunal consolidated and jointly tried the original petitions. 7. The petitioners in the two original petitions produced and marked Exts A1 to A10 (e) in evidence. The respondents did not let in any evidence. 8. The Tribunal, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to realise from the first respondent an amount of Rs.1,35,523/-, with interest at the rate of 7.5% per annum from the date of petition till the date of realization. 9. Dissatisfied with the quantum of compensation 5 MACA No.553 of 2011 awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.R.T Pradeep, the learned counsel appearing for the appellant/petitioner, Sri.P.C Chacko, the learned counsel appearing for the first respondent/first respondent and Smt.Raji T.Bhaskar, the learned counsel appearing for the third respondent /insurer. 11. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Ext A6 final report filed by the Police substantiates that the accident occurred solely due to the negligence of the driver of the bus. Undisputedly, the first respondent was the owner of the bus. Therefore, the first respondent is vicariously liable to pay the compensation amount to the appellant. 6 MACA No.553 of 2011 ## **Notional Income** 13. The appellant had claimed that he was a Mason by profession and earning a monthly income of Rs.5,000/-. Nevertheless, the Tribunal fixed the monthly notional income of the appellant at Rs.2,500/-. 14. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 15. Following the yardstick in the aforecited decision and keeping in mind that the accident occurred in the year 2004, I hold that the appellant's monthly notional income can safely be fixed at Rs.4,500/-. ## **Loss of earnings** 16. It is on record as per Exts A1 wound certificate, A3 discharge summary and A9 disability certificate that 7 MACA No.553 of 2011 the appellant had sustained a Type III B compound fracture on his right leg. He was treated by external fixation. Skin grafting was done and he was discharged with PTB cast on 13.12.2004. It was found that the appellant was temporarily disabled to the extent of 100% for a period of six months. Therefore, I hold that the appellant was indisposed for a period of six months. 17. In view of the refixation of the monthly notional income of the appellant at Rs.4,500/-, I hold that he is entitled for loss of earnings at Rs.27,000/- instead of Rs.7,500/- awarded by the Tribunal. ## **Loss due to disability** 18. The appellant had produced Ext A9 disability certificate issued by the Associate Professor of Orthopaedics Department, Medical College Hospital, Thiruvananthapuram, who has certified that the appellant has a permanent disability of 17% as per the Mc Bride's 8 MACA No.553 of 2011 scale. It is found that the appellant has a wasting of 1 cm of right thigh muscles, external rotation deformity of 5 degrees, oedema on the right ankle on walking, difficulty in climbing stairs and he is unable to carry weight. 19. Taking into consideration the fact that the appellant is a Mason by profession, I fix the functional disability of the appellant at 17% as certified in Ext A9, following the ratio of the Hon'ble Supreme Court in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** . Thus, I refix the functional disability of the appellant at 17% instead of 12% fixed by the Tribunal. ## **Multiplier** 20. Admittedly, the appellant was aged 36 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier is '15'. 9 MACA No.553 of 2011 ## **Loss due to disability** 21. In view of the refixation of the monthly notional income of the appellant at Rs.4,500/-, his functional disability at 17% and the multiplier at '15', I refix the compensation for loss due to disability at Rs.1,37,700/-, instead of Rs.54,000/- fixed by the Tribunal. ## **Bystander expenses** 22. Undisputedly, the appellant was treated as inpatient for a period of 44 days at Medical College Hospital, Trivandrum from 31.10.2004 to 13.12.2004. Although he had claimed an amount of Rs.7,000/- towards bystander expenses, the Tribunal awarded only an amount of Rs.4,400/-, which according to me is on the lower side. Therefore, I enhance the compensation under the said head by a further amount of Rs.2,600/-, i.e., an amount of Rs.7,000/-, as claimed in the claim petition. 10 MACA No.553 of 2011 ## **Loss of amenities** 23. The appellant had claimed an amount of Rs.50,000/- as compensation for loss of amenities. The Tribunal awarded only an amount of Rs.18,000/-. 24. Taking into account the serious nature of the injuries that the appellant had sustained in the accident, that he was treated as inpatient for a period of 44 days, that he was indisposed for a period of six months and that he has sustained a functional disability of 17%, I hold that the appellant is entitled for compensation for loss of amenities at 30,000/-, i.e., an enhancement by a further amount of Rs.12,000/-. ## **Other heads of compensation** 25. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings, 11 MACA No.553 of 2011 materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled for enhanced compensation as modified and recalculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|7,500/-|27,000/-| |2|Transportation<br>expenses|1,500/-|1,500/-| |3|Extra nourishment|1,000/-|1,000/-| |4|Damage to clothing|500/-|500/-| |5|Medical expenses|32,623/-|32,623/-| |6|Bystander expenses|4400/-|7,000/-| |7|Future<br>treatment<br>expenses||| |8|Pain and sufferings|16,000/-|16,000/-| |9|Loss of amenities and<br>enjoyment in life|18,000/-|30,000/-| |10|Permanent disability|54,000/-|1,37,700/-| |11|Loss of future earning<br>power||| ||Total|1,35,523/-|2,53,323/-| 12 MACA No.553 of 2011 In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.1,17,800/- (Rupees One Lakh Seventeen Thousand Eight Hundred only) with interest at the rate of 7.5% per annum on the enhanced compensation from the date of claim petition till the date of deposit, after deducting interest for a period of 40 days as ordered by this Court on 12.3.2021 in C.M Appln 930/2011, and a cost of Rs.3,000/-. The first respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of ninety days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation to the appellant, in accordance with law. Sd/- sks/4.10.2021 **C.S.DIAS, JUDGE**