Thambi Varghese v. Kerala State Road Transport Corporation and New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** **MACA NO. 3274 OF 2014** **AGAINST THE AWARD DATED 30.4.2012 IN OPMV 152/2013 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER:** THAMBI VARGHESE AGED 54 YEARS S/O.VARGHESE, S/O.VARGHESE,INSPECTOR,KSRTC DEPOT, KALPETTA POST & VILLAGE,VYTHIRI TALUK,WAYANAD DISTRICT BY ADV SMT.CELINE JOSEPH ## **RESPONDENTS/RESPONDENTS NO.2 & 3:** 1 MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION THIRUVANANTHAPURAM 2 MS.NEW INDIA ASSURANCE COMPANY LTD. REP.BY THE MANAGER, BRANCH OFFICE, M.G.T.BUILDINGS, KALPETTA NORTH POST, WAYANAD DISTRICT BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.P.MURALEEDHARAN SRI.P.MURALEEDHARAN ALEX ANTONY SEBASTIAN P.A. SRI. P.MURALEEDHARAN SC-R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3274 of 2014 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (MV) No.152/2013 on the file of Motor Accidents Claims Tribunal, Kalpetta. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident occurred on 28.5.2012 at about 2.30 p.m., while the appellant/claimant was travelling in a bus bearing registration No.KL 15-9046 from Kalpatta to Kozhikode. It is alleged that the vehicle reached at Wayanad Cliff, the bus hit the hill cutting and appellant/claimant sustained grievous injuries. Immediately, he was taken to Medical College Hospital, Kozhikode and there he underwent inpatient treatment for 13 days. 2. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent. 2[nd] respondent is the owner of the offending vehicle. 3[rd] respondent is the insurer. Total compensation of Rs.3,00,000/- has been claimed. 3. The 1[st] and 2[nd] respondents filed joint written statement MACA.No.3274 of 2014 3 denying the rashness and negligence on the part of the 1[st] respondent. It is also contended that the vehicle is insured with the 3[rd] respondent. 4. 3[rd] respondent/insurer filed separate written statement admitting the policy coverage with respect to the offending vehicle. It is also contended that the compensation claimed under various heads are highly excessive and exorbitant. 5. Exhibits A1 to A5 series and X1 were marked from the side of the claimant. Tribunal on evaluating the pleadings and materials produced awarded compensation of Rs.52,078/- in total. The 3[rd] respondent insurer held liable to make good the loss sustained by the 2[nd] respondent. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. The learned Standing Counsel Adv.P.Muraleedharan, appeared on behalf of the 2[nd] respondent/insurer. Sri.P.C.Chacko, the learned Standing Counsel appeared on behalf of 1[st] respondent, MACA.No.3274 of 2014 4 K.S.R.T.C. Lower court records were called for and perused. Both sides were heard. 8. The findings with respect to the negligence of the driver and liability of 1[st] respondent is not disputed. The only dispute is with regard to the quantum of compensation awarded by the Tribunal. 9. According to the learned counsel for the appellant, the appellant was aged 53 years at the time of accident. The appellant was a K.S.R.T.C. Inspector and was earning monthly salary of Rs.25,457/- and he availed commuted leave for 55 days and claimed for compensation under that head. The Tribunal only awarded Rs.4,667/- by taking 10% of the salary during that period. It is also contended that the amount of compensation awarded under the head of pain and suffering, loss of amenities, extra nourishment etc. are very low and hence the claimant seeks enhancement on those heads. 10. **George v. Krishnavenu [2020 (4) KLT 239]** , was relied on by the appellant wherein it has been held that when an employee meets with accident and is forced to undergo medical MACA.No.3274 of 2014 5 treatment for long, then even if, the employee has availed eligible leave for undergoing treatment, for the purpose of calculating loss of earnings in a claim under Section 166A, the Claims Tribunal has to compensate the employee for loss of leave period awarding appropriate amount. Last paragraph in para No.14 is relevant in this context to be extracted which reads as follows: ## xxxxxxx _Leave is a legal entitlement of an employee, but not a prerogative. It is a conditional right and an inseparable piece of employment package. Exercise of the conditional right is always subject to sanction by employer. Earned leave is granted to an employee for planned long leaves for the purpose of travel, vacation, etc. Leaves under other heads are also granted for specific purposes. When an employee is forced to avail those leaves consequent to a road traffic accident, he is losing his prerogative to the extent the leave availed for treatment and recuperation. In such circumstances, there is no reason why the employee should not be compensated for loss of such leaves._ 11. In this case, it has come out from Exhibit A10, that he MACA.No.3274 of 2014 6 had availed commuted leave for 55 days due to the accident and resultant injuries sustained by him. Exhibit A6 salary certificate would show that his salary during that period was Rs.25,457/- per month. Tribunal took a view that appellant received salary for the said period. But for the reason that his leave has been exhausted and he is deprived of availing those leaves for other purposes, 10% of salary was awarded towards compensation under that head. 12. As has been held in the above cited decision but for this accident and resultant injuries he could have otherwise used the commuted leave for his personal needs and requirements. So the course adopted by the Tribunal by reducing the compensation by 10% of the salary during the said period is illegal and irrational. So, he entitled for salary of 55 days it will come to Rs.46,671/-. Deducting the amount already awarded by the Tribunal the balance would be Rs.42,004/- (Rs.46,671-4,667). 13. The claimant sustained injury to pancreas and there was bleeding from pancreas. Towards medical expenses Tribunal awarded as Rs.15,000/-. He had undergone inpatient treatment for 13 days. The case sheet of the claimant was called for from the MACA.No.3274 of 2014 7 Medical College hospital and marked as Exhibit X1. In which it has been stated that there is Bulky head of Pancreas Mild to Moderate for fluid in peritoneal cavity. Thereby, he underwent inpatient treatment for 13 days. 14. The claimant was aged 53 years at the time of accident. The claimant produced Exhibit A8 the report of USG/X-Ray. It would show that in pancreas head appears bulky, lower Paraaortic area noted as obscured and Mild/Moderate free fluid noted in Peritoneal cavity. Exhibit A14 is the prescription with respect to the claimant dated 26.6.2012 issued by Dr.Prathapan V.K., M.S., MCH (GI Surgery), which would go show that he had consulted the Doctor with history of blunt trauma abdomen etc. and certain medicines were also prescribed. Thereafter, he continued Ayurvedic Treatment and prescriptions issued by Dr.Muhammed Shareef B.A.M.S. dated 22.10.2012 and 15.12.2012 were also produced. 15. According to the learned counsel he was having continued pain due to the accident and resultant injuries. So,taking into account the facts and circumstances and the materials produced an amount of Rs.5,000/- is further awarded towards pain MACA.No.3274 of 2014 8 and suffering. An amount of Rs.3,000/- further awarded towards loss of amenities. The learned counsel further contended about the amount awarded towards bystander expenses is only Rs.1,950/-. The incident was in the year 2012. Rs.300/- per day can be taken towards expenses of bystander (Rs.300x13=3,900). Rs.1,950/- is further awarded towards bystander expenses (Rs.3,900-1950). Towards extra nourishment Rs.2,000/- already awarded. Rs.1,500/is further awarded towards extra nourishment. So, the claimant is entitled to get enhanced compensation of Rs.53,454 rounded off to Rs.53,450/- (Rs.42,004+5,000+,3,000+1,950+1,500). 16. For easy reference compensation claimed and awarded under different heads are tabulated as follows: |Compensation under<br>different heads|Amount<br>claimed(Rs.)|Amount<br>awarded<br>by the<br>Tribunal<br>Rs.|Enhancement<br>by this Court| |---|---|---|---| |Income/notional income|25,000|Nil|| |Loss of earning (Total)|1,00,000|4,667|42,004| |Loss of earning (Partial)|Nil|Nil|| MACA.No.3274 of 2014 9 |Compensation under<br>different heads|Amount<br>claimed(Rs.)|Amount<br>awarded<br>by the<br>Tribunal<br>Rs.|Enhancement<br>by this Court| |---|---|---|---| |Medical and<br>miscellaneous expenses|2,00,000|14,821|| |Future Treatment +<br>physiotherapy|1,50,000|Nil|| |Bystander expenses|35,000|1,950|1,950| |Transportation expenses|20,000|2,640|| |Extra nourishment|30,000|2,000|1,500| |Damage to clothing,<br>etc.|3,000|1,000|| |Pain and suffering|1,50,000|15,000|5,000| |Mental and physical<br>shock and agony|1,00,000|Nil|| |Loss of earning power|1,00,000|Nil|| |Compensation<br>for<br>permanent disability|1,00,000|Nil|| |Loss of amenities|1,00,000|10,000|3,000| |Loss of future earning|1,00,000|Nil|| MACA.No.3274 of 2014 10 |Compensation under<br>different heads|Amount<br>claimed(Rs.)|Amount<br>awarded<br>by the<br>Tribunal<br>Rs.|Enhancement<br>by this Court| |---|---|---|---| |Compensation<br>for<br>disfigurement|50,000|Nil|| |Loss of expectation of<br>life|50,000|Nil|| |Compensation<br>of<br>inconvenience,<br>hardship,<br>discomfort,<br>disappointment,<br>frustration and mental<br>stress in life|1,00,000|Nil|| |Total<br>Limited to|13,88,000<br>3,00,000|52,078|53,454<br>rounded off to<br>Rs.53,450/-| 17. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.53,450/- (Rupees fifty three thousand four hundred and fifty only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the **date of petition ie. 08.4.2013** till realisation excluding 99 days, the delay caused in filing this appeal. The 2[nd] respondent/insurer is directed MACA.No.3274 of 2014 11 to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. The appellant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Sd/- **M.R.ANITHA JUDGE** SMF